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Docket No. MD04-00630

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

ex-PVT, USMC
Docket No. MD04-00630

Applicant’s Request

The application for discharge review was received on 20040303.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant listed Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041001.  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 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:

1.  “I request a discharge upgrade to Honorable so that I may be eligible for the GI Bill.  I am currently enrolled in college, and am working towards a degree in furthering my career to practice law.  My conduct and efficiency ratings/behavior and proficiency marks were exemplary.  My record of promotions showed I was a good service member.  The drug use and subsequent Article 15 was an isolated incident.  In this incident, my judgment was impaired by my youth and immaturity.  I have been a good citizen since my discharge and have worked hard to overcome the offense in service by counseling teens against the use of drugs.  I also feel that had this transgression occurred today that I would not have been discharged.”

Documentation

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

Applicant’s DD Form 214
Ltr frm Applicant dtd 040226
Ltr frm M. B_, Col, USMC (Ret)
Ltr frm J. E_, Capt, USN (Ret)
Ltr frm Cpl A_ S_, USMC
Ltr frm S_ G_ [Applicant’s mother]
Eighty-six pages from Applicant’s service record
Ltr frm G_ S_, VFW
ADA County Sheriff’s Office records check
Idaho State Police records check
Official Grade Transcript from Boise State University

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):
	Active:   
	Inactive: USMCR(J)		970522 - 970629	COG
Period of Service Under Review:

Date of Enlistment:  970630		Date of Discharge:  000225

Length of Service (years, months, days):

	Active:    02  07  25
	Inactive:  None

Age at Entry:  17			Years Contracted:  4

Education Level:  12			AFQT:  77

Highest Rank:  Cpl			MOS:  6172

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (4)			Conduct:  4.5 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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:

960814:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

990423:	Counseled for deficiencies in performance and conduct.  [On 990321 you were stopped at the Maine Gate for driving under the influence of alcohol and underage drinking.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990513:	NJP for violation of UCMJ, Article 134, consume alcoholic beverages while under the legal drinking age.
Awarded forfeiture of $558.00 per month for 2 months, restriction and extra duties for 45 days, reduced to E-3, reduction susp 6 mos.  Not appealed.

990603:	NJP imposed and suspended on 990513 vacated.

990811:	Counseled for deficiencies in performance and conduct.  [Lack of attention to detail resulting in damage to government property.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990817:	NAVDRUGLAB [SAN DIEGO], reported Applicant’s urine sample, received 990811, tested positive for [THC].

990831:	Division Chief’s statement: [In March 1999 then Corporal B_ was pulled over by PMO on a routine car inspection with his friends J_ V_ and E_ M_.  During that inspection LCpl B_ blew in a breathalyzer with a result of .06.  For him being [underage] a .00 is the limit.  PMO asked LCpl B_ if [they could] search his vehicle.  He said yes because he didn’t have anything to hide.  That was when PMO discovered that E_ M_ was a deserter and found drug paraphernalia on J_ V_.  LCpl B_’s driving privileges were revoked automatically the day after.  He was given an urinalysis test and it came out negative.  LCpl B_ received NJP that resulted in reduction to E-3 (suspended for 6 months), ½ months pay for 2 months, forty-five days both restriction and EPD.]

991103:	Summary Court-Martial.  Violation UCMJ, Article 112a, did wrongfully use marijuana.  Sentence: reduced to E-1, forf 639.00 for 1 mo, confinement for 30 das.

991214:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by [Applicant’s] Summary Court-Martial conviction on 3 Nov 99 for wrongful use of marijuana.

991221:	Applicant advised of rights and having consulted 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.

000113:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was [Applicant’s] illegal drug use. 

000113:	Applicant declined treatment.

000128:	SJA review determined the case sufficient in law and fact.

000203:	GCMCA [CG, 3d MAW] 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 20000225 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).

Issue 1.  When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge 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 nonjudicial punishment and court martial proceedings for violations of Articles 112a and 134 of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant states his discharge was based on one isolated incident. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  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 following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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 31 Jan 97 until 31 August 2001. 

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.