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

ex-Pvt, USMC
Docket No. MD05-00105

Applicant’s Request

The application for discharge review was received on 20041013.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary record review.  The Applicant did not list a representative on his 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:

1.  “Move on with my life, get veterans benefits, been clean for over five years”

Documentation

The Applicant did not provide any additional documentation for the Board to consider during the deliberations of his case.

PART II - SUMMARY OF SERVICE

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

	Active:   			None			HON
	Inactive: USMCR (J)		None			COG

Period of Service Under Review:

Date of Enlistment:  940921		Date of Discharge:  970312

Length of Service (years, months, days):

	Active:    02  05  22
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  39

Highest Rank:  LCpl			MOS:  1391 (Bulk Fuel Specialist)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (11)			Conduct:  4.0 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

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:

940909:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver was granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

960119:	Counseled for deficiencies in performance and conduct.  [Financial mismanagement.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970114:	NAVDRUGLAB [Jacksonville, FL] reported Applicant’s urine sample, received 24 Dec 96, tested positive for THC.

970207:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a.
	Specification:  … wrongfully use marijuana.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Reduced to PFC, and 45 days extra duties.  
	CA action 970210:  Sentence approved and ordered executed.
	
970221:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970225:	NAVDRUGLAB [Jacksonville, FL], reported Applicant’s urine sample, received 03 FEB 97, tested positive for THC.

970305:	NJP for violation of UCMJ, Article 86:  … wrongfully use Marijuana.
Awd red to Pvt/E-1, forf of $450.00 per month for 2 months, and 30 days restriction and extra duties.  Not appealed.

970211:	SACO/DACO eval/comment:  Applicant “was unwilling to discuss substance abuse history due to pending courts martial.”

970306:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the Applicant’s “recent testing positive for a controlled substance, i. e. Marijuana, between 961129 and 961212, and again, between 970113 and 970127.”

970306:	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.

970306:	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 “testing positive for a controlled substance, i. e. Marijuana, between 961129 and 961212, and again, between 970113 and 970127.”

970307:	SJA review determined the case sufficient in law and fact.

970307:	GCMCA [Commanding General, 2d Force Service Support Group] 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 19970312 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:  In the Applicant’s case, the Board discovered no impropriety or inequity; thereby, considers the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a member of the United States Marine Corps.  The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by a Summary Court-Martial and the awarding of nonjudicial punishment (NJP) for illegal drug use on two occasions.  Additionally, the record shows the Applicant had a thorough understanding of the Marine Corps’ policy on illegal drug use prior enlisting.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to an honorable discharge would be inappropriate.  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.  However, the NDRB is authorized to consider outstanding 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.  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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   The Applicant did not provided any documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief not warranted.
 
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 additional documentation to support any claims of post-service accomplishments 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