DEPARTMENT OF THE NAVY
BOARD FOR C O R R E C T I O N O F NAVAL RECORDS
2 NAVY ANNEX
W A S H I N G T O N DC 2 0 3 7 0 - 5 1 0 0
ELP
Docket No. 2329-00
2 March 2001
From:
To:
Chairman, Board for Correction of Naval Records
Secretary of the Navy
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Subj:
Ref:
(a) 10 U.S.C.1552
Encl :
(1) DD Form 149 w/attachments
(2) Case Summary
(3) Subject's Naval Record
1. Pursuant to the provisions of reference (a) , Petitioner, a
former enlisted member of the Marine Corps, applied to this
Board requesting, in effect, that his record be corrected by
upgrading his general discharge, changing the reason for
discharge to expiration of enlistment, and removing all
derogatory information.
2. The Board, consisting of Messrs. Pfeiffer, Ensley, and
Bishop reviewed Petitioner's allegations of error and injustice
on 22 February 2001 and, pursuant to its regulations, determined
that the corrective action indicated below should be taken on
the available evidence of record. Documentary material
considered by the Board consisted of the enclosures, naval
records, and applicable statutes, regulations and policies.
3. The Board, having reviewed all the facts of record
pertaining to Petitioner's allegations of error and injustice
finds as follows:
. .
. a
a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and
regulations within the Department of the Navy.
b. Although it appears that Petitioner's application to
the Board was not filed in a timely manner, it is in the
interest of justice to waive the statute of limitations and
review the application on its merits.
c. Petitioner enlisted in the Marine Corps on 22 July 1982
for four years at age 21. The record reflects that he was
advanced to LCPL (E-3) and served for 21 months without
incident. However, during the four month period from April to
August 1984, he received two nonjudicial punishments (NJP) for
use of marijuana and disrespect. On 16 April 1984 he was
counseled on the use of illegal drugs and his frequent
involvement with military authorities.
d. The record reflects that on 19 November 1984,
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Petitioner was transferred from the 3rd Tank Battalion at
29 Palms, CA and reported the following day to the 9th
Communication Battalion at Camp Pendleton, CA. On 29 November
1984, a Navy drug laboratory reported to the commanding general
at 29 Palms that Petitioner's urine sample, received on 23
November 1984, had tested positive for marijuana. The specific
date of the urinalysis is not shown in the record. Out of the
76 urine samples submitted, the two which tested positive were
assigned consecutive accession numbers.
e. On 19 December 1984, Petitioner received his third NJP
for use of marijuana while at his previous command. Punishment
imposed consisted of reduction in rank to W T (E-1) , forfeitures
of $200 per month for two months, and 30 days of restriction and
extra duty. The NJP authority suspended the restriction for a
period of 30 days. On the following day, Petitioner was
referred for a dependency evaluation and the conmanding
officer's endorsement indicated Petitioner had potential for
further service. Petitioner was determined by a medical officer
to be non-dependent. Petitioner denied use of marijuana or any
use of drugs since his NJP in April 1984. He desired to remain
in the Marine Corps to help support his mother. During the
month of January 1985, Petitioner provided five urine samples,
the results of which are not documented in the record.
f. On 22 January 1985, Petitioner was notified that he was
being processed for discharge under other than honorable
conditions by reason of misconduct due to drug abuse. He was
advised of his procedural rights and elected present his case to
an administrative discharge board. (ADB) . On 28 January 1985
the conmanding general directed that the ADB be conducted
expeditiously, giving due consideration to counsells need to
prepare for Petitioner's case.
commander recormended to the legal services support team that
Thereafter, the company
Petitioner be discharged with a general discharge under less
than honorable conditions [sic].
g. On 1 February 1985, an ADB reconmended that Petitioner
be discharged under other than honorable conditions by reason of
misconduct due to drug abuse. The ADB1s record of proceedings
is not on file in the record. The discharge authority approved
the ADB recommendation and directed discharge under other than
honorable conditions. Petitioner was so discharged on 6 March
1985.
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h. On 8 March 1990, Petitioner appeared with counsel
before the Naval Discharge Review Board (NDRB) . Petitioner s
explained the circumstances that led to his first two NJPs.
With regard to the first NJP, he claimed that he ingested
marijuana unknowingly when his girlfriend prepared some tea with
marijuana in it, and the second NJP was only a technical
violation because he told a noncordssioned officer (NCO) to
back off after being harassed and poked by the NCO. The NDRB
found both explanations to be plausible and credible, but could
not completely dismiss his culpability. With regard to the
third NJP, the NDRB specifically noted that it was somewhat
unusual that the two positive tests out of 76 samples submitted
had consecutive sequence numbers, and that a social security
number had been incorrectly transcribed. The NDRB believed
that this increased the probability of irregular collection
procedures. The NDRB noted the contention of Petitioner and
counsel that on 20 November 1984, he submitted urine specimens
upon transfer and upon reporting to his new command, and that
one was positive and the other was negative. The NDRB also
noted a number of inconsistencies in this case, such as the
commanding officer (CO) recommending a general discharge under
less than- honorable conditions; sending Petitioner to the Drug
and Alcohol Abuse Control Officer for evaluation and citing him
as having potential, but at the same time recommending his.
discharge; placing him on a surveillance program and suspending
a portion of the NJP; all of which indicated that the CO
actually wanted to retain Petitioner. Further, The NDRB
believed that the commanding general's direction that the ADB be
conducted expeditiously was detrimental to Petitioner1s right to
a fair hearing and resulted in an unstudied or hasty decision by
the ADB. The NDRB found Petitioner to be credible and candid in
his testimony and believed the circumstances described by
Petitioner had occurred. The NDRB concluded that the
characterization and the basis for Petitionerls discharge should
be changed to show he was separated with general discharge under
honorable conditions by reason of best interests of the service.
i. Petitioner now states he was to be represented by a
captain at the ADB, but he never showed up due to some
unforeseen commitments. He claims that the ADB replaced the
absent officer with a second lieutenant, who had no time to
prepare for the case and was overwhelmed and intimidated by the
ADB and the recorder. Petitioner supports his application with
documentation to show that since his discharge from the -pjarine
Corps, he returned to college, received his degree and pursued a
career the business field with a national bank, where he was
instrumental in setting up special collection procedures to
assist military members stationed overseas with credit card
accounts. During his more than five years with the bank, he
received numerous certificates of recognition, commendation, and
appreciation for his customer assistance and community service.
In September 1996, he joined the Wilmington Police Department
and has been cited for his professionalism and assistance in the
return of a stolen automobile, his apprehension of an armed
suspect and recovery of stolen electronics equipment and stolen
handguns, and saving of the life of an unconscious person while
administering CPR until paramedics arrived. His supervising
captain and inspector submit letters to the Board attesting to
his professionalism, dedication and community volunteer
involvement. His captain states that Petitioner was chosen as a
sector specialist for his willingness to get the job done and
works wlth the community to solve many problems that exist in
the district. He is currently a candidate for promotion
corporal and is being considered for a position on the
department's crisis management hostage negotiating team.
Counsel for Petitioner asserts that Petitioner was denied due
process during his ADB due to his command's operational
corrPnitment, and questions the command's competency in this case
given the inconsistencies noted by the NDRB.
i. Regulations provide that individuals discharged by
reason of best interest of the service receive the type of
discharge warranted by the service record. Character of service
is based, in part, on conduct and proficiency averages which are
computed from marks assigned during periodic evaluations. At
the time of Petitioner's transfer his conduct and proficiency
averages were 3.9 and 4.5, respectively. After his reduction in
rank, he received additional marks of 2.0 in conduct and 3.9 in
proficiency. This lowered his conduct and proficiency averages
to 3.6 and 4.4, respectively. A minimum average mark of 4.0 in
conduct was required for a fully honorable characterization at
the time of his discharge.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants partial
favorable action. The Board notes the NDRB findings and its
action to recharacterize Petitioner's service to a general
discharge and change the reason for discharge to best in-terests
of the service. The Board also notes the absence of ~ ~ G A D B
proceedings and other evidence that would have been considered.
The Board believes, as did the NDRB, that the commanding
general's direction that Petitioner's case be expeditiously
conducted because of operational comnitments may have been
prejudicial and denied him due process, especially since there
was a change in counsel and the new lawyer apparently had little
or no time to prepare for his client's case. However, absent
the record of proceedings and the evidence that Petitioner
submitted two urinalyses on the same day with different results,
the Board finds no compelling basis for removing the derogatory
documentation surrounding his discharge from the record or
changing the reason for discharge to expiration of enlistment.
However, the Board notes that despite being discharged under
other than honorable conditions, Petitioner returned to college,
earned a degree, and has made significant post-service
achievements in which he has been cited for his professionalism
and community service both in a business environment and as a
police officer. The Board notes that such post-service
achievements are somewhat rare and believes that they far
outweigh Petitioner's service misconduct. Although his marks do
not warrant a fully honorable discharge, the Board now concludes
that it would be appropriate and just to recharacterize his
general discharge for fully honorable as an exception to policy.
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show
that he was honorably discharged on 6 March 1985 by reason
Secretary of the Navy Plenary Authority vice the general
discharge issued on that date.
That no further relief be granted.
c. That a copy of the Report of Proceedings be filed in
Petitioner's naval record.
d. That, upon request, the Department of Veterans Affairs
be informed that Petitioner's application was received by the
Board on 30 March 2000.
4 . It is certified that a quorum was present at the Board's
review and deliberations, and that the foregoing is a true and
complete record of the Board's proceedings in the above entitled
matter.
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ROBERT D. ZSAIMAN
Recorder
Acting Recorder
5 . Pursuant to the delegation of authority set out in Section 6
(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6
(e)) and having assured compliance with its provisions, it is
hereby announced that the foregoing corrective action, taken
under the authority of reference (a) , has been approved by the
Board on behalf of the Secretary of the Navy.
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