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Docket No. MD04-01063

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

 ex-PVT, USMC
Docket No. MD04-01063

Applicant’s Request

The application for discharge review was received on 20040618.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant listed American Legion as his representative on the DD Form 293.

Decision
A personal appearance hearing discharge review was conducted in Washington, D.C. on 20050914.  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 submitted by American Legion, superseding Applicant’s previous issues:

“1. (Equity Issue)  This former member opines that his discharge is too harsh in light of his youth, alcohol dependence and over all service record. 

2. (Equity Issue)  This former member further requests that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
_________________________________________________________________

In accordance with Title 32, CFR, Section 724.166 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue in supplement to this Applicant’s petition. 

The American Legion’s express purpose in providing this issue and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553, and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D. 

This case is now respectfully submitted for deliberation and disposition. ”

Documentation

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

Copy of Applicant’s DD Form 149, dated June 23, 2003
Copy of Applicant’ s DD Form 214 (2)
Copy of Letter from Applicant, dated February 25, 2003 (2)
Copies of Certificate of Achievement, dated June 4, 2002 (2)
Copies of Certificate of Completion, dated June 21, 2002 (2)
Copies of Certificate of Completion, dated January 18, 2002 (2)
Copies of Letters of Recommendation from M__ C. L___ (2) (undated)
Copies of Certificate of Completion, dated December 17, 2001 (2)
Copy of Letter from Congressman C___ F____, dated May 27, 2003
Personal Information Sheet to Congressman C___ F___, dated February 24, 2004
Copies of Service Related Documents (10 pages)
Letter from Congressman C___ F___, unsigned, dated February 28, 2003
Letter from Department of Army Review Board, dated March 14, 2003
Letter from Department of Army Review Board, dated April 8, 2003
Copy of Letter from Congressman C___ F___, dated November 17, 2003
Letter from Applicant received by NDRB April 21, 2005
Letter from American Legion to Applicant, dated March 11, 2005
Certificate of Training in Nonviolent Conflict Resolution, dated June 8, 2005
Letter of Recommendation from K_ J_, MSW, CAC (undated)
Community Service Award certificate, dated June 21, 2002
Achievement Award certificate (undated)
Seven weekly participant evaluation forms, for periods from March 3, 2002 to June 14, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		910606 - 911104	COG

Period of Service Under Review:

Date of Enlistment:  911105		Date of Discharge:  940712

Length of Service (years, months, days):

	Active:    02  08  08		[Does not exclude lost time]
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  40

Highest Rank:  LCpl			MOS:  3381

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (7)			Conduct:  3.8 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, CoA, CoC

Days of Unauthorized Absence:  18

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:

910604:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

930729:	NJP for violation of UCMJ, Article 86: On or about 0400, 930727 failed to be at appointed place of duty (rifle range) until 1045, 930727; violation of UCMJ, Article 92: failure to obey lawful order (to put name tapes on his uniform as per the MCO).
Awarded forfeiture of $221.00 per month for 1 month (suspended for 6 months), restriction and extra duties for 14 days.  Not appealed.

931007:	Medical Officer recommended administrative discharge in accordance with MCO 6310.1B and MCO P1900.16C. [Pseudofolliculitis Barbae]

931210:	NJP for violation of UCMJ, Article 86: (2 Specifications), Specification 1: On or about 931201 left the battery area without being secured and did not return until 0755, 931202; Specification 2: On or about 0730, 931203 absent without authorization until 0945, 931207 (4 days).
Awarded forfeiture of $221.00 pay per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

931214:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 931206, tested positive for THC.

931215:	Vacate suspended forfeiture awarded at NJP dated 930729.

931217:	NJP for violation of UCMJ, Article 112a: On or about 931201 did test positive for THC; violation of UCMJ, Article 134: On or about 0700, 931217 did break restriction by not signing in; violation of UCMJ, Article 86: On or about 0730, 931217 fail to report to appointed place of duty (BN CO’s office for NJP proceedings).
Awarded forfeiture of $456.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

940414:	Summary Court Martial
	Charge I:  violation of the UCMJ, Article 86.
	Specification:  Unauthorized absence 0800, 940314 until 1200, 940328.
	Findings:  to Charge I and the specification thereunder, guilty.
	Sentence:  Forfeiture of $662.00, confinement for 30 days (suspended for 6 months), reduction to Pvt.
	CA (not dated):  Sentence approved and ordered executed.
 
940420:	Director, Consolidated Drug and Abuse Center informed Commanding Officer, 3d Battalion, 10^th Marine Regiment, that he evaluated the Applicant on 940415 for substance abuse via command referral.  The Applicant was diagnosed as a drug abuser.  The Applicant was briefed on the VA’s drug rehabilitation programs and given directions to the VA hospital closest to his home of record.

940426:	Judge Advocate Review of Summary Court Martial of 940414.  Findings and sentence correct as of matter of law.

940517:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your non-judicial punishment conducted on 931217 for illegal use of marijuana.

940606:	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.

940606:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was members non-judicial punishment conducted on 931217 for illegal use of marijuana.

940624:	SJA review determined the case sufficient in law and fact.

940627:	GCMCA, Commanding General, Second Marine Division, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

991122:	NDRB documentary record review Docket Number MD98-00209 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940712 under other than honorable conditions for misconduct due to drug abuse (A and B).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

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 three nonjudicial punishment proceedings (NJP’s) for violations of Articles 86, 92 and 112a of the UCMJ and a summary court-martial conviction for a 14-day period of unauthorized absence.   The Applicant’s violations of Article 92 and 112a are considered  serious offenses.  In addition to the Applicant’s three NJP’s, the Applicant’s forfeiture awarded at NJP on 19930729 was vacated on 931215 due to the Applicant’s continued misconduct.  During the Applicant’s testimony before the Board, the Applicant admitted to using illegal drugs during his enlistment on multiple occasions despite only testing positive for THC by urinalysis on one occasion, an event that resulted in NJP.  The Applicant also admitted during his hearing of an arrest by civil authorities due to the Applicant’s misconduct which resulted in his 14-day period of unauthorized absence in 1994.  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 contends that his misconduct in the Marine Corps should be mitigated by his youth, alcohol dependence and overall service record.  While he may feel that his immaturity and abuse of alcohol were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  Mandatory processing for separation is required for members who abuse illegal drugs and separation under these conditions generally results in characterization of service under other than honorable conditions.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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.  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.  The Board applauds the Applicant’s continued efforts to overcome his addictions, community service efforts and educational pursuits.  However, during the Applicant’s testimony before the Board, the Applicant admitted to a conviction for aggravated assault, a felony, in 2001 which resulted in seven years probation.  The Applicant provided further testimony regarding his continuing battle to comply with the terms of his probation and overcome his addictions.  The Applicant’s evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.    Relief denied.

The following if provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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.  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 92, for failure to obey an order/regulation.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy 	Council of Review 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.