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

ex-PFC, USMC
Docket No. MD04-01297

Applicant’s Request

The application for discharge review was received on 20040810.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing in Sheffield, AL.  Since the NDRB does not travel, and all hearings are held in the Washington National Capital Region, the Applicant’s case was accepted for a documentary record review.  The Applicant listed the Veterans Affairs Department, Shoals Area as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050201.  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 have been discharged for 6 years.  I need benefits to help with the Doctor Bills, for the shoulder injury I received while still an active member of the United States Marine Corp.   I have no benefits for which I can turn too, so I may receive the proper medical care for shoulder injury I received while still an active member of the U.S. Armed Forces, and also, I feel that my type of Discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse actions taking place.”

Documentation

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

College advisor’s sheet (3 pp.)
Three pages from Applicant’s medical record
Letter of recommendation from J_ L. K_
Letter of recommendation from C_ L. P_

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		940610 - 941211	COG

Period of Service Under Review:

Date of Enlistment:  941212		Date of Discharge:  971216

Length of Service (years, months, days):

	Active:    03  00  05
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  32

Highest Rank:  LCpl			MOS:  0811

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (9)			Conduct:  3.6 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, MM, RMB

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:

940610:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver was required.  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

951215:	Counseled regarding deficiencies, specifically, driving without a valid license.  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

970424:	NJP for violation of UCMJ, Article 91: Disobeyed order from Cpl J_ to log in visitors to his BEQ room.
Awarded forfeiture of $258.00, restriction and extra duties for 14 days ($100.00 forfeiture and extra duties suspended for 6 months).  Appealed on 970424.  Appeal decision made on 970430 was to suspend $200.00, 8 days restriction, and 14 days extra duty for 6 months.

970512:	Counseled regarding deficiencies, specifically, testing positive for THC.  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

970513:	Vacate suspended punishment from NJP on 970424.

970529:	Counseled regarding deficiencies, specifically, inability to be at appointed place of duty and in the prescribed uniform.  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

970613:	NJP for violation of UCMJ, Article 112a: Wrongful use of THC.
Awarded forfeiture of $505.00, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

970620:	Medical screen for drug abuse found Applicant to be a drug abuser and recommended for Level II treatment.  Not dependent.

970710:	Applicant accepted finding of Physical Evaluation Board that he was unfit for duty and should be administratively separated due to bilateral plantar fasciitis, secondary to PES planus, DNEPTE #725.71.

970807:	Counseled regarding deficiencies, specifically, testing positive for methamphetamine (Msg#11226Z Jul 97) and involvement of a discreditable nature with military and civilian authorities.  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

971113:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive urinalysis for methamphetamine.

971113:	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.

971117:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  

971125:	GCMCA [CG, 1st 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 19971216 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.  Administrative separation for misconduct takes precedence over discharge for other potential reasons.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions for disobeying the orders of a NCO and for illegal drug use.  The Applicant also was the subject of adverse counseling entries on other occasions, to include additional drug use.  Drug abuse warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  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.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety 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 his misconduct sufficient to warrant an upgrade to his discharge.  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 31 Jan 97 until 31 August 2001. 

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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