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Docket No. MD05-00759

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

 ex-Pvt, USMC
Docket No. MD05-00759

Applicant’s Request

The application for discharge review was received on 20050331.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Atlanta, GA.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC at the Washington Navy Yard.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050727.  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

No issues were submitted by the Applicant. 

Documentation

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

No additional documentation.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		940628 - 940807	COG

Period of Service Under Review:

Date of Enlistment:  940808		Date of Discharge:  970411

Length of Service (years, months, days):

	Active:    02  08  03
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  35

Highest Rank:  LCpl		MOS:  3531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (8)			Conduct:  3.7 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, LoA, REB

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:

940627:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

960815: 	Applicant acknowledged he was eligible but not recommended for promotion to CPL for the month of September due to an attitude problem and lack of leadership traits indicative of a good NCO.  Applicant chose not to make a statement.  

961127:	Applicant acknowledged he was eligible but not recommended for promotion to CPL for the month of December due to lack of initiative and leadership.  Applicant chose not to make a statement.  

961211:	NAVDRUGLAB JACKSONVILLE FL reported Applicant’s urine sample, received 961202, tested positive for THC.

961220:	NJP for violation of UCMJ, Article 112a:  Wrongful use of a controlled substance, In that LCpl S_ L. J_ (Applicant), did wrongfully use marijuana, a schedule II substance, on or about 961202.
Awarded forfeiture of $150.00 pay per month for 2 months, restriction and EPD for 45 days, and reduction to E-2.  Not appealed.

970121:	Medical Officer, Substance Abuse Counseling Center, MCAS New River advised the Applicant's Commanding Officer that the Applicant was screened by a substance abuse counselor on 970113, whose impression was drug abuse; Applicant then seen my medical officer on 970122, whose impression was alcohol abuse.  Recommendation was for the Applicant to be processed for administrative separation.
	[Note:  Date of letter precedes the date the Applicant was seen by a medical officer, as stated in the letter.]

970122:	Applicant acknowledged that he was seen by a medical officer, whose diagnosis was drug abuse (nondependent) and, as such, he was not entitled to treatment in conjunction with his discharge.  Advised of the VA Medical facility nearest to home of record which can provide treatment.

970131:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 0700 to 0800 on 970123.
Awarded:  Reduction to E-1.  Not appealed

UNDATED:	Counseled for deficiencies in performance and conduct, specifically, developing a pattern of misconduct by his positive result on a recent urinalysis test and his frequent unauthorized absences.  Necessary corrective actions explained, sources of assistance provided, advised of pending administrative discharge.

970224:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with the least favorable characterization of service possible being under other than honorable conditions.  The factual basis for this recommendation is the Applicant's illegal use of marijuana during his current enlistment.  Commanding Officer comments:  "This type of conduct is not indicative of the standards set forth by the U.S. Marine Corps and therefore will not be tolerated."
	[Note:  Notification of Separation Proceedings is dated 970227 but the record indicates the Applicant received it on 970224.]

970224:	Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

970227:	Commanding Officer, Marine Wing Support Squadron 272 requested the Applicant's discharge under other than honorable condition by reason of misconduct due to drug abuse.

970305:	Commanding Officer, Marine Wing Support Group 27 forwarded request for Applicant's discharge with a positive endorsement.

970327:	SJA review determined the case sufficient in law and fact.

970327:	GCMCA, Commanding General, 2d Marine Aircraft Wing advised the Commandant of the Marine Corps (MMSB) that the Applicant will be discharged 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 19970411 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 introduced no decisional issues for consideration by the NDRB.  As such, the Board thoroughly reviewed the Applicant's service records to determine if his discharge from the Marine Corps was improper and/or inequitable and, thus, warranted upgrade of his characterization of service.

The NDRB advises the Applicant that certain serious offenses, including drug abuse (use), warrant separation from the Marine Corps in order to maintain proper order and discipline.  The Applicant's misconduct is documented in his service record, which is marred by the finding at a nonjudicial punishment (NJP) proceeding on 961220 of violation of UCMJ Article 112a Wrongful use of a controlled substance, the charge being substantiated by the positive test for THC obtained by the Naval Drug Laboratory, Jacksonville, FL on 961211.  This misconduct substantiates the reason for his separation as well as his characterization of service under other than honorable conditions.  No other narrative reason for separation or characterization could more clearly describe why the Applicant was discharged.  Relief is denied.

The following is provided for the edification of the Applicant.  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 Marine Corps.  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.  The Applicant has not provided any documentation for the Board to consider.

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.