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Last saved by: shirley.robertson
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Docket No. MD04-01473

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

ex-PVT, USMC
Docket No. MD04-01473

Applicant’s Request

The application for discharge review was received on 20040922.  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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  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:

“ The discharge was based on an isolated incident during a hard time in my life.  I was a young Marine and did not know where to go for help.  NCO’s along with the NCOIC know my situation and did nothing to help or offer help of others.  I do not hold anyone but myself accountable for my actions but myself, and am truly remorseful.  I do believe help would have changed the outcome of my actions.  Please take this into consideration with regards to change the other than honorable to an honorable discharge.”

Submitted by Applicant subsequent to submission of application:

“ To whom it may concern:
 	At the time these events occurred which caused me an Other Than Honorable Discharge, I had buried a childhood friend, along with my grandmother, within a month of each other.  I was not thinking in the best possible way, but this was no excuse for the poor decisions I made.  After realizing how these decisions would effect the military career, which I was so proud of, and had worked hard for, I was ashamed and remorseful.
  	With regrets, my military career is now over, and I have to deal with the embarrassment of an Other Than Honorable Discharge, everywhere I go.  I was given an opportunity to start a new career with AK Steel.  AK Steel is one of the largest steel producing corporations in the US.  I have also become responsible husband, and father of two wonderful children. 
   	Since my discreditable actions I have learned to deal with life’s little problems in more suitable ways.  I will carry my actions with me forever, and will regret them the rest of my life.  
   	I plead with you to change my Other Than Honorable Discharge to an Honorable Discharge, receive fair treatment in the public sector, and rid the embarrassment of dishonorably serving my country.”

Documentation

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

None submitted

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR (J)		981201 – 981206*	COG

Period of Service Under Review:

Date of Enlistment:  981207*	Date of Discharge:  010606

Length of Service (years, months, days):

	Active:    02 06 00
	Inactive:  None

Age at Entry:  20			Years Contracted:  5

Education Level:  12			AFQT:  53

Highest Rank:  PFC			MOS:  6075

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (5)			Conduct:  3.9 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  RMB

Days of Unauthorized Absence:  10

* Initial enlistment contract not contained in Service Record.

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:

000127:	Counseled this date concerning my [Applicant] alcohol related misconduct on or about 000123.  SNM [Applicant] consumed excessive quantities of alcohol resulting in unconsciousness, which required SNM to be transported to Balboa Naval Hospital for alcohol detoxification treatment. SNM’s Blood Alcohol content was a .237    Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

000223:	Substance Abuse Counseling Center, MCAS Miramar conducts screening/assessment of Applicant.  Diagnostic impression and recommendations:  “Substance use below the diagnostic level.  ALCOHOL IMPACT 0800-1200, 6-10 March 2000.”

000420:	NJP for violation of UCMJ, Article 112 (1 spec):
Specification 1: In that PFC O_ did on or about 1 Feb 00 reported for duty with MALS-16 Support Equipment while under the influence of alcohol, and had a BAC of 0.0143.
Awarded: Reduction PVT/E-1. 45 days EPD, 45 days restriction to mess, billeting, duty, and worship.  Suspended reduction PVT/E-1, 45 days EPD, 45 days restriction to mess, billeting, duty and worship, suspended for 6 months at which time, unless sooner vacated will be remitted without further action.  Not appealed.

000804:	NAVDRUGLAB SAN DIEGO, reported Applicant’s urine sample, received 000731, tested positive for THC.

000908:	NAVDRUGLAB SAN DIEGO, reported Applicant’s urine sample, received 000831, tested positive for THC.

010307:	Substance Abuse Counseling Center, MCAS Miramar conducts screening/assessment of Applicant.  Diagnostic impression and recommendations:  “Substance use below the diagnostic level.  Medical evaluation required 1300, 08 March 01. Recommend Administrative separation per MCO 5300.12a for Positive Urinalysis Drug.  Client will meet LIP for further diagnosis.  Client met no criteria for Drug/Alcohol Abuse (DSM IV. V71.09).”

010308:	Medical evaluation for drug abuse found the Applicant to be a drug abuser.  Applicant admitted to use, aware of USMC Policy. 

010309:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a (2 Specs).
	Specification 1:  In that PFC T_ M. O_ U.S. Marine Corps, on active duty, did at an unknown location, on or about 6 July 2000, wrongfully use marijuana (THC), a controlled substance.
	Specification 2:  In that PFC T_ M. O_ U.S. Marine Corps, on active duty, did at an unknown location, on or about 21 August 2000, wrongfully use marijuana (THC), a controlled substance.
	Finding:  to Charge I and the specifications  thereunder, guilty.
	Sentence:  Reduction to Private/E-1, confinement for 30 days, forfeiture of 2/3 rds pay for 1 month (total forfeiture $695.00 for 1 month).
	CA action 010309:  Sentence approved and ordered executed.

010410:	Applicant to UA at 0730, 010410.

010420:	Applicant from UA at 1300, 010420.

010424:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse specifically drug abuse of marijuana (THC). The factual basis for this recommendation was NAVDRUGLAB MSG DTG 042132Z Aug 00, and MSG DTG 082116z Sep 00. 

010424:	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.

010424:	Applicant provided with VA Treatment Location Statement.  

010426:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was NAVDRUGLAB MSG DTG 042132Z Aug 00, MSG DTG 082116Z Sep 00. 

010516:	SJA review determined the case sufficient in law and fact.

010523:	GCMCA , Commanding General, 3d Marine Aircraft Wing, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010525:	Applicant issued “Order And Notice To Vacate Marine Corps Air Station Miramar and All Marine Corps Bases, Western Area” by Commander, Marine Corps Air Bases Western Area.

010530:	NJP for violation of UCMJ, Article 86 (1 spec):
Specification 1: In that PVT O_ was UA on or about 10 Apr 01 to 20 Apr 01.
Awarded:  Forfeiture of $170.00 pay per month for 1 month (total forfeiture $170.00).   Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010606 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).

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.

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 2 nonjudicial punishment proceedings for violations of Articles 86 (UA 10 days) and 112 of the UCMJ.  Also, the Applicant was found guilty by a summary court-martial of violation of Article 112a (2 Specifications) 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.

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 any documentation for the Board to consider.  Relief denied.

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 5420.174D 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

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.