Author: CAP
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Docket No. MD05-01033

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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMCR
Docket No. MD05-01033

Applicant’s Request

The application for discharge review was received on 20050602.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060112.  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 by reason of misconduct due to drug abuse.

 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or from an attached document/letter to the Board:

“I am writing to respectfully request a change of my discharge to “Honorable” instead of “other than honorable”.

My Discharge was the direct result of an immature, self-destructing act of smoking Marijuana.  I had attended a party the night before drill and had some “pot”.  As a result, of the routine urine test, THC appeared in the urine.  I was immediately dismissed and was told I would be discharged forthwith.  I did not attend the two subsequent drills, as the humiliation in front of my peers was more than I could bear.  Thus, the two “Unauthorized Absences” on my record.

I have anguished over this since being dismissed and regret my actions more than I can put into words..  Not only did I humiliate myself, but also my family and more importantly, I let the Marine Corps down.  Recently, I visited the Marine Corps recruiting office to try and reenlist, I was informed I could not, but they did tell me I could petition for a change of discharge status.

I know I “screwed up” and would like to, in some way, redeem myself.  I am currently working full-time and attending jr. college in the hopes of becoming a firefighter.  I’m not a “pot-head” and since that party, I have not, nor will ever again touch Marijuana.  I learned too little, too late, that the consequences of my actions are sometimes very painful and have long-reaching effects.

Please reconsider my discharge status and change it to Honorable.

Thank you for your consideration. 

Respectfully,

J_ M_ B_
[signed]”

The Applicant’s representative submitted no issues for consideration.

Documentation

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

Nine pages from Applicant’s service record
Letter from Applicant, dtd September 6, 2005
Page four of a criminal record check, undated
Sutter Medical Center, Volunteer Service Description, dated June 16, 2005
Applicant’s weekly schedule for week of September 5, 2005 to September 11, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  20001004		Date of Discharge:  20030608

Length of Service (years, months, days):

Active:    00  07  29
	Inactive:  02  00  05

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  8

Education Level:  12				AFQT:  69

Highest Rank:  LCpl				MOS:  3521

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NA*				Conduct:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Expert Badge

*Not Available

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:

001003:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

001004:	Pre-service waiver for drug use granted.  [Date estimated]

010124:	Enlistment contract into the USMCR documents acknowledgement of the requirement to participate in 48 scheduled drills and not less than 14 days of annual training per year for 6 years upon completion of initial active duty training.

010124:	Applicant reported for initial tour of active duty for training.

UNDATED:	Counseling:  Advised of deficiencies in performance and conduct (Violation of North Carolina State Law and Marine Corps regulations by underage drinking in Jacksonville, NC on 010715.  This type of behavior is unsatisfactory and will not be tolerated.  Underage Marines are prohibited from consuming or possessing alcoholic beverages on or off base.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010922:	Applicant released from initial tour of active duty for training with an honorable characterization by reason of completion of required active service (USMCR) IADT.

020907:	Counseling:  Advised of deficiencies in performance and conduct (Misconduct, Drug Abuse-Unlawful use and possession of a controlled substance, positive test in a random urinalysis test on 10 August 2002 for 152 ml of THC.), and advised being processed for administrative discharge action.

020907:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct, drug abuse-unlawful use and possession of a controlled substance.  The least favorable characterization possible is under other than honorable conditions.  The factual basis for this recommendation was misconduct, drug abuse-unlawful use and possession of a controlled substance positive test in a random urinalysis test on 10 August 2002 for 152 ml of THC.  

020907:	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.

021005:	Applicant notified of being subject to competency review board due to Applicant’s professional incompetence.

021005:	Applicant declared an unsatisfactory participant in the selected Marine Corps Reserve for unauthorized absence from regularly scheduled inactive duty training (IDT): 7-8 September 2002 (4 drills) and 4-6 October 2002 (5 drills).  Applicant informed of status and issued discharge warning.

030227:	Commanding Officer recommended Applicant for discharge by reason of misconduct due to drug abuse and recommended the Applicant receive an under other than honorable conditions characterization.  [Extracted from SJA letter of 030603 and GCMCA letter of 030608.]

030314:	Commanding Officer, Headquarters and Service Company, Fourth Maintenance Battalion, Fourth Force Service Support Group Charlotte, NC recommended Applicant’s discharge under other than honorable conditions.  [UNSIGNED]

030603:	SJA review determined the case sufficient in law and fact.  [UNSIGNED]

030608:	GCMCA, Commanding General, Headquarters, Fourth Force Service Support Group, New Orleans, LA directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Service Record Book contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030608 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions.  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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

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 a violation of Article 112a of the UCMJ in addition to the Applicant’s failure to attend nine drills and underage drinking.  The Applicant’s conduct is considered a violation of the special consideration given the Applicant at his enlistment due to the Applicant’s preservice drug use.  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 Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his discharge was the result of an “immature act.”  While he may feel that his youth and immaturity 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 contends that he is currently working full-time and in school.  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 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.  The Applicant provided a volunteer service description and a criminal records check as evidence of his post-service conduct.  The Applicant’s efforts should be more encompassing.  Examples of documentation that should also be provided to the Board include proof of educational pursuits, verifiable employment records and credible evidence of a substance free lifestyle.  As of this time, the Applicant has not provided sufficient post-service 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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 
01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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