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Docket No. MD04-00865

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

ex-PFC, USMC
Docket No. MD04-00865

Applicant’s Request

The application for discharge review was received on 20040429.  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 the New Jersey Department of Military & Veterans Affairs as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041022.  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/ INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  My discharge was based on one isolated incident in 2 years and 3 mos with no other misconduct.

2. Since my discharge I haven’t gotten in any trouble and have never been arrested before or after my discharge.

3. Since my discharge I have joined the New Jersey Army National Guard and are serving honorably.

4. I am currently enrolled in college in a criminal justice program.  Pursuing position as a State Trooper.”

Additional issues submitted by Applicant’s representative (New Jersey Department of Military & Veterans Affairs):

“5.  Veteran is married and continuous to lead a productive life.  Giving back to his country as well as community. Married July 2003.  He has worked consistently until activated within National Guard.  Has held steady employment.  Has worked as an Assistant Field Supervisor for six years + 3 years for APV Enterprises.”
Documentation

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

Copy of Applicant’ s DD Form 214
Letter to Discharge Review Board from W_R_ G_, dtd 20 April 2004
Copy of Activation Orders, State of New Jersey Department of Military and Veteran 	Affairs, (2 pages) dtd 02 April 2004
Copy of Enlistment Form for New Jersey Army National Guard, (2 pages) dtd 	2003/04/22
College Transcript, County College of Morris, (2 pages) dtd 01/07/04
Letter to Applicant from County College of Morris, dtd December 22, 2003
Letter from Employer, dtd January 28, 2002
Certified Copy of Certificate of Marriage, dtd 7/29/03
Letter from M_M_B_, NSO New Jersey Department of Military & Veterans Affairs, dtd 	22 April 2004
US Dept of Veterans Affair form Appointment of Veterans Service Organization as 	Claimants (Applicants), 4/22/04

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		920514 - 921108	COG

Period of Service Under Review:

Date of Enlistment:  921109		Date of Discharge:  950210

Length of Service (years, months, days):

	Active:    02  03  01
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  67

Highest Rank:  LCpl			MOS: 0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (6)			Conduct:  4.1 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SSDR, UN

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE/ INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

920512:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

941005:	NAVDRUGLAB JACKSONVILLE FL, reported Applicant’s urine sample, received 940926, tested positive for cocaine.

941014:	NJP for violation of UCMJ, Article 112a (1 spec):
Specification 1:  At Lima Co, on or about 940922, LCpl P_ knowingly and wrongfully used cocaine, a controlled substance.
Awarded:  Reduction to E-2, forfeiture of $466.00 per month for 2 months (Total forfeiture $932.00), restriction for 60 days.  Not appealed.

941018:	Director, Consolidated Drug and Alcohol Center, MCB Camp Lejeune, Evaluation Report for Substance Abuse.  Applicant evaluated on 941012 as the result of a Command referral.  Results of evaluation; Diagnostic Impression: Drug Abuse.  Treatment Plan: Returned to duty.   SNM (Applicant) should be strictly held accountable for actions.   SNM (Applicant) was counseled and given the information for contacting a VA Hospital nearest to SNM’s  (Applicant) home of record for treatment after discharge from USMC.  It is recommended that SNM (Applicant) be administratively processed for separation in accordance with ALMAR 246/92.  Applicant signed Statement of Understanding of Treatment for Substance Abuse at Veterans Administration Medical Center for assistance after discharge.

950103:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your nonjudicial punishment of 14 October 1994 for wrongful use of cocaine.
 
950103:	Applicant advised of 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.

950103:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the Applicant’s nonjudicial punishment of 14 October 1994 for wrongful use of cocaine.

950124:	SJA review determined the case sufficient in law and fact.

950124:	GCMCA, Commander, 2d Marine Division,  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 19950210 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. The Applicant states that “my discharge was based on one isolated incident in 2 years and 3 mos with no other misconduct.”  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.  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 a nonjudicial punishment proceeding for violation of Article 112a 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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for Marines 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.

Issue 2, 3, 5.  That Applicant and his representative contend that his post service warrants a discharge upgrade.   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, 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.

Issue 4.  The Applicant states that he is “pursuing position as a State Trooper.”   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 P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

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.