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Docket No. MD05-00580

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

 ex-Pvt, USMC
Docket No. MD05-00580

Applicant’s Request

The application for discharge review was received on 20050217.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Washington, DC.  The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20051019.  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-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s representative, Veterans of Foreign Wars, at the time of the hearing, which supersede all prior issues submitted: 

“Equity in service:  The Applicant had exemplary conduct for approximately 2 years and 10 months prior to his first adverse action.  He is a veteran of the First Gulf War.

Equity in service:  Mitigating factor:  The Applicant was sexually assaulted prior to all adverse actions.  There is a direct causation between the assault and the misbehavior.

Post Service Equity:  The Applicant has attended alcohol and substance abuse rehabilitation.  He is an active member of his Alcohol Anonymous group and is the Secretary/Treasurer.

Post Service Equity:  The Applicant is a productive member of society.  He has been either employed or attending college full time since leaving rehabilitation. “

Documentation

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

Applicant’s DD Form 214
Letter from VFW,dtd February 10, 2005

Additional documentation provided by the Applicant at the time of the hearing and considered by the Board:

Copy of Vet Center Assessment of Applicant, (11 pages with fax cover sheet)
	dtd December 18, 2003 
Copy of Social Security Statement, (4 pages) dtd October 25, 2004
Copy of Letter of Character/Reference from P_ M_, dtd October 13, 2005
Copy of Letter of Character/Reference from P_ B. H_, dtd October 5, 2005
Copy of Certificate of Outstanding Service from M_ M_ Realtors, dtd April 19, 2005
Copy of Department of Professional and Occupational Regulation Commonwealth of 	Virginia Real Estate Board – Salesperson License for S_ L_ G_ (Applicant), 	expiration date March 31, 2007
Copy of Bank Statement for S_L_G_ (Applicant), (2 sided), statement period August 19, 	2005 through September 19, 2005

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(DEP)		890329 - 890423	COG

Period of Service Under Review:

Date of Enlistment:  890424		Date of Discharge:  920611

Length of Service (years, months, days):

	Active:    03  01  19	(Does not exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  78

Highest Rank:  LCpl			MOS:  0341

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (10)			Conduct:  3.5 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  REB, LoA (2), SSDR, SASM with 2 Stars, NUC, NDSM

Days of Unauthorized Absence:  18

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Drug abuse (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

890328:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

9108XX:	Applicant attended Navy Alcohol /Drug Safety Action Program (NADSAP) at Camp Pendleton, CA.

920127:	Applicant to unauthorized absence 1130, 920127.

920214:	Applicant from unauthorized absence 0900, 920214 (18 days/surrendered).

920214:	Applicant to confinement.

920219:	Applicant from confinement.

920225:	SACO report on Medical Evaluation for Substance Abuse.  Diagnosis is that Applicant is psychologically dependent for drugs and alcohol.  Recommendation:  “Depending upon if separation to occur or not; if potential good for further service.  Needs Level III treatment for substance abuse (Amphetamine) and alcohol abuse dependence.  Physically past the point for withdrawal and detoxification not required.”  

920302:	NJP for violation of UCMJ, Article 112a:
Specification: Wrongfully and unlawfully used a controlled substance on or before 911220, to wit: LCpl G_ (Applicant) tested positive for amphetamine/methamphetamine.
Violation of UCMJ, Article 86:
Specification: Absent himself from appointed place of duty on 1130, 920127 to 0900, 920214.
Awarded forfeiture of $350.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-2.  Not appealed.

920323:	NJP for violation of UCMJ, Article 112a:
Specification: Wrongful use a controlled substance on or before 920214, to wit: LCpl G_ (Applicant) tested positive for amphetamine/methamphetamine and THC.
Awarded forfeiture of $300.00 per month for 2 months, restriction and extra duties for 40 days, reduction to E-1.  Forf of $300.00 pay per month for 2 months is hereby susp for a period of 6 mos unless sooner vacated will be remitted without further action.  (Total forf susp $600.00).  Not appealed.

920407:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse.  The factual basis for this recommendation is the Applicant’s  two nonjudicial punishments, both of which evidenced the use of a controlled substance. The least favorable characterization of service which you may receive is under other than honorable conditions.  The Commanding Officer is recommending a discharge characterization of under other than honorable conditions.  

920428:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

920428:	Commanding Officer, 1^st Battalion, 4^th Marines, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. 

920428:	Applicant signed Veterans Administration statement of understanding concerning the availability of the drug and alcohol rehabilitation program for eligible Marines that need and desire treatment.  Applicant declined treatment in conjunction with discharge.  Applicant provided with contact information for VA Hospital/Facility that can provide appropriate treatment nearest his home of record.
 
920429:	Commanding Officer, 1^st Marines concurs with CO, 1^st Battalion, 4^th Marines recommendation for the Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

920511:	SJA review determined the case sufficient in law and fact.

920513:	GCMCA, Commanding General, 1^st Marine Division (Rein), FMF, 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 19920611 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).

The Applicant contends that his conduct prior to “his first adverse action” was exemplary.  
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.
There is credible evidence in the record that the Applicant used illegal drugs.  The Applicant was positive on two urinalysis tests for amphetamines, methamphetamine, and THC.  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.  Specifically the Applicant’s service was marred by two nonjudicial punishment proceedings for violations of Articles 86 (UA for 18 days) and 112a (2 charges of wrongful use of controlled substances) of the UCMJ.  The Applicant completed the Navy Alcohol Drug Safety Action Program during August 1991, prior to his wrongful use of controlled substances.  The Applicant was evaluated by the unit Substance Abuse Control Officer and diagnosed as psychologically dependent on drugs and alcohol.  The Applicant declined enrollment in the Veteran’s Administration Drug and Alcohol Program offered in conjunction with his discharge.  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.

The Applicant contends that while on active duty, he was sexually assaulted and that this traumatic experience lead to his misconduct in the Marine Corps.  There is no evidence in the record and the Applicant did not provide corroboration to the alleged sexual assault.  While he may feel that the alleged sexual assault was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  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.

The Applicant states that he has attended alcohol and substance abuse rehabilitation and that he is a productive member of society through his education and employment history since leaving rehabilitation.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided proof of his current employment, two letters of character/reference, and a report of a counseling session at a VA Vet Center as documentation of his post-service.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  Specifically, the Applicant did not provide corroboration to his statement that he has completed alcohol and substance abuse rehabilitation and that he has been attending college and working since completing rehabilitation.  Also, the Applicant admitted that he had been arrested for assault during 2003 and that he had been removed from a rehabilitation program for fighting with another patient.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted.  

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.  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.