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USMC | DRB | 2000_Marine | MD00-01026
Original file (MD00-01026.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT

ex-Cpl, USMC
Docket No. MD00-01026

Applicant’s Request
The application for discharge review, received 000831, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area. The applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010329. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Commission of a serious offense (all other) admin discharge board required but waived, authority: MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge was inequitable because it was based on one isolated incident in 24 months of service with no other adverse action.

2. The basis of the arrest was for possession of marijuana (misdemeanor) which I asserted I was holding for friend. Drug test by the USMC proved negative justifying my ascertain.

3. I believe Commanding Officer S. B___ was unfair in his characterization of me. I proved to be a hard worker at my job and achieved the rank of corporal in under 2 years.

4. Since this time I have proved to be an upstanding citizen and have been continuously employed providing services to the general public.

5. During my training I proved to be an exceptional Marine now a graduate of Purdue University I continue to prove to be an exceptional citizen.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Bachelor of Arts Degree from Purdue University

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                840228 - 840328  COG

 Period of Service Under Review :
Date of Enlistment: 840329               Date of Discharge: 860312

 Length of Service (years, months, days):

         Active: 01 11 14
         Inactive: None

 Age at Entry: 21                          Years Contracted: 6

Education Level: 12                        AFQT: 90

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (7)                       Conduct: 4.2 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM

Days of Unauthorized Absence: None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Commission of a serious offense admin discharge board waived, authority:MARCORSEPMAN Par.6210.6

 Chronological Listing of Significant Service Events :

860115:  Civil conviction at Richmond, VA General District Court for possession of marijuana
         Sent: Placed on the deferred judgment program.

860204:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
860204:          Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

860207:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. The factual basis for this recommendation was your arrest in Richmond, Virginia for possession of marijuana.

860214:  Commanding Officer, Marine Aircraft Group 14 concurred with the recommendation to discharge other than honorable conditions by reason of misconduct due to the commission of a serious offense. The factual basis for this recommendation was your arrest in Richmond, Virginia for possession of marijuana.

860224:  SJA review determined the case sufficient in law and fact.

860305:  GCMCA [Commanding General] directed the applicant's discharge other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 860312 under other than honorable conditions for misconduct due to the commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In the applicant’s issue 1, the Board considered t he applicant's case under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief is therefore, denied.

In the applicant’s second issue he states he was holding the marijuana for a friend. On 13 February, 1984 the applicant signed the Statement of Understanding on the Marine Corps policy on illegal drugs. He clearly demonstrated his understanding that possession of marijuana is a serious offense under the UCMJ, an offense punishable by trial by court-martial. The applicant’s willful disregard for the rules and regulations governing good order and discipline is accurately reflected in his discharge under other than honorable conditions for misconduct. Relief denied.

In examining the applicant’s third and fifth issues, the Board found the applicant’s performance was average at best and noted his several counseling entries to the effect that he was eligible but not recommended for promotion to Corporal as he was determined to not be ready for the responsibilities of a non-commissioned officer. T he Board further disagrees with his assertion that his service was exceptional and warrants an honorable discharge. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The applicant’s service was marred by his plea of guilty and the Richmond Virginia General District Court finding of guilty on 860115 of the applicant’s possession of marijuana, an offense triable by court-martial. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his deliberate disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief is therefore denied.

The NDRB recognizes that serving in the Marine Corps is very challenging.
Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. Relief denied.

In considering the applicant’s fourth issue, that he is now an upstanding citizen providing services to the public, the Board found no evidence of this assertion included in the applicant’s request. The following is provided for the applicant’s edification. The NDRB is authorized to consider outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. However, there is no law or regulation that provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must be found to have existed during the period of enlistment in question. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. While the Board applauds the applicant's accomplishments in graduating from Purdue University, his efforts need to be more encompassing than those provided. The applicant should have produced evidence of a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not abusing drugs or alcohol in order for consideration for upgrade based on post-service conduct. The applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted.

This review coincides with the expiration of the applicant’s fifteen-year eligibility for NDRB action (12 March 2001). As the applicant did not elect to appear before the Board in a personal appearance hearing, as recommended in NDRB letter MD00-01026/HER dated 7 September 2000, this decision exhausts the applicant’s opportunity for review by the NDRB. The applicant remains eligible to appeal for upgrade to the Board for Correction of Naval Records.
Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210 MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 2, effective 15 Apr 84 until 28 Jul 87.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a, unlawful use of a controlled substance.
C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.af.mil ”.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      

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