Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. MD05-01084

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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD05-01084

Applicant’s Request

The application for discharge review was received on 20050606.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051102.  After a thorough review of available 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

No issues were submitted by the Applicant.

Documentation

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

Applicant’s DD Form 214
Meritorious Mast Certificate, dtd June 9, 2003
Certificate of completion, dtd March 29 - April 2, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20010727 - 20020707	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020708		Date of Discharge:  20041027

Length of Service (years, months, days):

Active:    02  03  20  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  24 days

Age at Entry:  17 (Parental Consent)

Years Contracted:  5

Education Level:  12				AFQT:  66

Highest Rank:  LCpl				MOS:  6153

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):  National Defense Service Medal, Meritorious Mast, Expert Rifle 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:

010719:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

010720:	Pre-service waiver granted for marijuana usage.

040210:	NAVDRUGLAB, San Diego, CA reported Applicant’s urine sample, received 040204, tested positive for amphetamine/methamphetamine.

040301:	Counseling:  Advised of deficiencies in performance and conduct (illegal drug involvement specifically methamphetamine usage identified through urinalysis confirmed by NAVDRUGLAB San Diego, CA msg 101652Z Feb 04.), and advised being processed for administrative discharge action.

040315:	Screening/Assessment from Substance Abuse Counseling Center:  Diagnostic impression and recommendation are:
	Substance abuse disorder.
	Medical evaluation required 1300 on 18 MAR 04.
	Special Notes/Instructions: Applicant met 1 or 4 criteria for alcohol abuse DSM IV (305.00).  Applicant did not meet any criteria for drug abuse or dependence at this time.  Applicant is recommended to attend MACC and OP treatment here at SACC Miramar.  Also recommend process in accordance with MCO P1700.24B.

040318:	Medical Record Consultation Sheet: Applicant referred for addiction consultation.  Results: Concur with above treatment plan and treatment of ETOH abuse due to underage drinking - problems.  Agree with process in accordance with MCO.

040414:	Memorandum of Special Court-Martial Pretrial Agreement: Charges referred on 040330 was withdrawn with intent to refer it to a summary court-martial.

040511:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the April-Jun 2004 promotion period because of recent positive testing for drug use.  Applicant chose not to make a statement.

040512:	Summary Court-Martial.
	Charge: violation of the UCMJ, Article 112a:
	Specification: Wrongfully used methamphetamine on 2 February 2004 at unknown location.
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Forfeiture 2/3 pay for 1 month, confinement for 30 days, reduction to E-1.  Forfeiture suspended for 12 months.
	CA action 040513:  Sentence approved and ordered executed.

040707:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct specifically drug abuse.  The factual basis for this recommendation was NAVDRUGLAB msg dated 040211 and Applicant’s conviction by summary court-martial conducted on 040512 for wrongful use of a controlled substance.

040707:	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.

040707:	Commanding Officer, HMH-462, MAG-16, 3DMAW MCAS Miramar, CA (via:  Commanding Officer, Marine Aircraft Group 16 (REAR)), recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “SNM tested positive for meth on 4 Feb 04.  SNM was reduced to E-1, 30 days confinement, suspended fine.  I do not recommend retention.”

040929:	SJA review determined the case sufficient in law and fact.

040929:	GCMCA, Commanding General, Third Marine Aircraft Wing directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Service Record did not contain advise of location and/or number of nearest VA Facility.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041027 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 available 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).

The Applicant introduced no decisional issues for consideration by the Board; however, the following is provided for the Applicant’s edification.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question, but the Board found no such impropriety or inequity.  While 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 Board 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.  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, verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant did not provided any post-service documentation for consideration.  Relief on this basis 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 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.  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