Author: CAP
Last saved by: shirley.robertson
Company: NCPB

Docket No. MD05-00236

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

ex-Sgt, USMC
Docket No. MD05-00236

Applicant’s Request

The application for discharge review was received on 20041117.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington, D.C. Metropolitan area.  The Applicant did not list a representative on his DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118.  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 would like to request my discharge be upgraded for the purpose of Veterns Affairs Substance abuse programs and recovery programs.  I would like to give my life & recovery a chance.  I had almost 10 years of faithful service.  The V. A. has great programs that want to help me.  All other programs I’m not eligible For, because of insurance issues.  Please consider me for this upgrade.  Thank you.  (signed) (Applicant)

I’m days away From completing a 21 day drug an alcohol program at the V. A. Medical Center in Coatesville, PA.  I’m homeless and I don’t want to live back on the streets.  The V.A. has a homeless domicile For me to stay and get better, but my discharge needs to be upgraded.  The return address on my envelop is were I’m at now, I can recive mail at my mom’s house at (address deleted), but I’m not welcome to live there.  Please help me.”

Documentation

The Applicant did not provide the Board with any additional documentation for consideration during the deliberation of his case.

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		941122 - 970324	HON
					901211 - 941121	HON
	Inactive: USMCR (J)		901010 - 901210	COG

Period of Service Under Review:

Date of Enlistment:  970325		Date of Discharge:  991015

Length of Service (years, months, days):

	Active:    02  06  21		Inactive:  None

Age at Entry:  25			Years Contracted:  4 (3^rd Enlistment)

Education Level:  12			AFQT:  40

Highest Rank:  Sgt			MOS:  3531 (Motor Vehicle Operator)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  0.0 (*)			Conduct:  0.0 (*)

Military Decorations:  GCM (2), MeritM, NMCAM (2)

Unit/Campaign/Service Awards:  NDSM, MUC (2), NUC, SSDR

Days of Unauthorized Absence:  None

	*Note:  Applicant’s Fitness Reports were available to the Board for review.

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:

970325:	Applicant reenlisted for 4 years and was briefed upon and certified understanding of articles of the UCMJ, which includes article 112a that deals with controlled substances.  (Note:  The Applicant was granted a waiver for pre-service marijuana experimentation and civil charges for possession of marijuana and possession of drug paraphernalia for his initial enlistment in the Marine Corps.) 	

980603:	NAVDRUGLAB [San Diego, CA] reported Applicant’s urine sample, received 980527, tested positive for Amphetamine/Methamphetamine.

980929:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a. 
	Specification:  Wrongfully use methamphetamine.
	Findings:  to the Charge and specification thereunder, guilty.
	Sentence:  No punishment adjudged.

981022:	Medical evaluation for drug abuse found the Applicant did “not meet diagnostic criteria for drug/alcohol abuse or dependency.”  Although, the applicant did not meet the criteria for treatment in conjunction with his discharge, he was provided contact information for the nearest treatment center to his home address.

981112:	Applicant relieved for cause and the Commanding General, MCRD/WRR San Diego, voided his additional MOS of 8511.

990128:	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 “violation of Article 112a, which resulted in a special court-martial.”

990128:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

990128:	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 being found guilty of drug abuse at a Special Court-Martial.  Commanding officer’s comments: “His misconduct, due to drug abuse, severely limits his potential as a Marine and renders him incapable of serving honorably in the Marine Corps.” 

990302:	Commandant of the Marine Corps (MMPR-2) informed the Applicant his name was “administratively deleted from the 1998 Staff Sergeant Selection List.” 

990330:	Applicant notified of supplemental rights for his administrative separation proceedings.”

990401:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to present written statements to the Secretary of the Navy in rebuttal to the proposed separation.

990401:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

990411:	Defense Counsel petitioned the Commanding General to suspend the Applicant’s discharge for “approximately 6 months to allow (the Applicant’s wife) to continue to utilize military medical pending the birth of their first child.”

990517:	SJA review determined the case sufficient in law and fact.

990519:	GCMCA [Commanding General, MCRD/WRR San Diego] recommended the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990909:	ASN (M&RA) approves Applicant's administrative separation with an 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 19991015 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 Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits.  This issue does not serve to provide a foundation upon which the Board can grant relief.

Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  There is credible evidence in the record the Applicant used illegal drugs.  Drug abuse in the military service warrants processing for separation, normally under other than honorable conditions.  The Applicant was found guilty at a Special Court-Martial for wrongful use of methamphetamine.  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions. The separation authority concurred with the Administrative Discharge Board’s recommendation and ASN (M&RA) approved the Applicant’s discharge.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service.  It must be noted most Marines serve honorably; thereby, earning their honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due.  An upgrade to honorable conditions 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 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, a positive employment record, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   The Board appreciates the Applicant’s efforts to improve his life and his involvement in his local community’s counter narcotic efforts and encourages him to continue his participation.  At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief is 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

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.