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Docket No. MD03-00635

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

 ex-Pvt, USMC
Docket No. MD03-00635

Applicant’s Request

The application for discharge review was received on 20030303.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to convenience of the government.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040114.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character and narrative reason of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“My name is R_ A_ (Applicant), and the following are the reasons that I feel my discharge should be upgraded to Honorable. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply in my case due to the evidence that I am submitting.

1.  Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of an undesirable discharge.

2.  My average proficiency and conduct ratings were relatively good.

3.  I have been an upstanding citizen, and a diligent worker since the time of discharge.

4.  My ability to serve was severely impaired by my youth and immaturity.

5.  My discharge was based on a few offenses, but they were mostly minor in character.

Thank you in advance for your attention to this matter. As a God and Country loving individual, I have learned a staggering respect for the morals of repentance and responsibility. I also believe that after reviewing the enclosed issues, and letters of reference, and also my military records, that the council will arrive at the same conclusion I have. They will see that I, Richard Armstrong, am truly remorseful for what I have done, and am worthy of a second chance. I greatly appreciate the council’s time and effort in looking into this matter, and am eagerly anticipating a positive response.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Copy of DD Form 214
Character reference from R_ W. W_
Character reference from W_ G. H_
Copy of Proficiency/Conduct markings
        Page 12 and 13 from SRB
        Letter from Applicant dated March 14, 2003

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:    None
	Inactive: USMCR(J)		941006 - 950212	COG

Period of Service Under Review:

Date of Enlistment:  950213		Date of Discharge:  960324

Length of Service (years, months, days):

	Active:    01  01  11
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  70

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (2)			Conduct:  4.3 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  18

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN 6210.5.

Chronological Listing of Significant Service Events:

941005:	Initial enlistment contract documents admission of pre-service drug experimentation.  Enlistment waiver granted.  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

951204:	NAVDRUGLAB San Diego, CA, reported Applicant’s urine sample, received 951124, tested positive for THC.

951215:	NJP for violation of UCMJ, Article 112a: Between 951101 and 951116 wrongfully use THC.
Awarded forfeiture of $427.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

951215:	To UA at 1800.

960104:	From UA.  Surrendered at 1430.

960109:	Summary Court-Martial.
Violation of UCMJ, Article 86: UA; and UCMJ, Article 134:  Break restriction.
Sentenced to 30 days confinement.
CA action: approved on 960109.

960116:	Applicant declined Level III treatment for alcohol dependence.

960118:	Medical evaluation for drug abuse found the Applicant to be Cannabis and Alcohol dependent.  Level III treatment was not recommended since Applicant was not receptive to intervention.

960125:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NJP for wrongful use of a controlled substance.

960125:	Applicant advised of his rights and having elected not 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.

960125:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was due to NJP for wrongful use of a controlled substance.  

960214:	NJP for violation of UCMJ, Article 112a: Wrongfully use THC.
Awarded forfeiture of $437.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

960304:	SJA review determined the case sufficient in law and fact.

960304:	GCMCA [CG, 1^st MARDIV (Rein.)] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960324 under other than honorable conditions for misconduct due to drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issues 1-5.  There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity occurred during the Applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.    

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 to 30 Jan 97. 

B.  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.  

C.  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.

D.  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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
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