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Docket No. MD05-01274

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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD05-01274

Applicant’s Request

The application for discharge review was received on 20050725.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060403.  After a thorough review of the 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

Applicant’s issues, as stated on the application:

“I’m requesting this upgrade in order to continue my education.  I understand the nature of my discharge and also what I did in order to receive it.  Since that time, I have remained clean and productive citizen.  I would like to continue that productivity by going back to school.  In order to do that, I need this upgrade so that I might be able to have access to my MGI Bill that I put money into.  Thank you for understanding.”

Documentation

Only the service record book and medical record were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19961106 - 19961113	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19961114		Date of Discharge:  20000330

Length of Service (years, months, days):

Active:    03  04  17
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  5

Education Level:  12				AFQT:  72

Highest Rank:  Cpl				MOS:  2841

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):  Good Conduct Medal, Meritorious Unit Commendation

*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:

961101:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

961114:	Pre-service waiver for height/weight granted.

980902:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Oct/Nov/Dec because of lack of leadership.  Applicant chose not to make a statement.

991202:	U.S. Naval Criminal Investigative Service Report.

000110:	Counseling:  Advised of deficiencies in performance and conduct (On two occasions, the most recent being 15 Oct 99, SNM used a controlled substance (ecstasy).  Previous occasion was during summer, 1999.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000124:	NJP for violation of UCMJ, Article 92:  In that Cpl M_ S. P_, having knowledge of a lawful order issued by the Commanding General Marine Corps Base to wit: BO P5300.13A Consolidated Substance Abuse Civil Manual 25 Oct 88, an order which it was his duty to obey, did at HQBTRY 11THMARDIV Box 555504 CAMPEN CA 92055, on or about 15 Oct 99 and summer of 1999, fail to obey the same by wrongful use and possession of a controlled substance (ecstasy).
Violation of UCMJ, Article 112a: Did at HQBTRY 11THMARDIV BOX 555504 CAMPEN CA 92055, or in the surrounding community, on two separate occasions, the most recent being 15 OCT 99, and previously during the summer of 1999, wrongfully used ecstasy.
	Award:  Forfeiture of $617.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  Forfeiture suspended for 6 months. Not appealed.

000126:	Naval Addictions Rehabilitation and Education Department, Naval Hospital, Camp Pendleton, CA:  Applicant refused medical officer’s evaluation.

000207:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of illegal drug use.  Applicant informed the least favorable characterization of service possible is under other than honorable conditions.

000207:	Commanding Officer, Headquarters Battery, 11^th Marines, recommended Applicant’s discharge under other than honorable conditions due to illegal drug use.  The factual basis for this recommendation was wrongful use of ecstasy on or about 15 Oct 99 as verified by self admission to NCIS investigator D.C. H_ on  26 Oct 99.  

000210:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

000316:	Applicant found medically qualified for separation.

000322:	SJA review determined the case sufficient in law and fact.

000328:	GCMCA, Commanding General, 1^st Marine Division (Rein) directed the Applicant's discharge under other than honorable conditions by reason of drug abuse.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000330 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).

There is credible evidence in the record that the Applicant used illegal drugs.  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.  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 Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief on this basis would be inappropriate.  

The Applicant contends that he has “remained clean.”  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.  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.  As of this time, the Applicant has not provided any 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.  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 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