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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00024

Applicant’s Request

The application for discharge review was received on 20050927.  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 personal appearance before a traveling panel closest to New York, New York.  The Applicant did not designate a 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 20060830.  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:

“Reenlist

Honorable Members of the Navy Discharge Review Board.  I E_ G G_(Applicant) (social security number deleted) have submitted a form requesting an upgrade of my discharge from the Marine Corps.  The reason an upgrade is requested is because I would like to reenlist in the Marine Corps and to have the opportunity to serve my country honorably I know that my bad choices led to my discharge out of the Marine Corps and that is the reason I have not even touched a can of beer or any tobacco products ever since I was discharged.  I have PT every single day and I have been out of any problem.  I am more than willing to do whatever is necessary for that opportunity to be given to me, I request as humble as I can to please consider my request.  For I much desire to go back to my beloved Marine Corps, and have the opportunity to honorably serve my Country.
Att. E_ G G_(Applicant)”

Documentation

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

Applicant’s DD Form 214 (Member 1 and Service 8)
Letter of Appreciation, dtd July 20, 2004
Certificate of Appreciation, undtd
Twenty-seven pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20031119 - 20040119	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20040120		Date of Discharge:  20040913

Length of Service (years, months, days):

Active:    00  07  25
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  26

Years Contracted:  4

Education Level:  12				AFQT:  54

Highest Rank:  Pvt				MOS:  9900

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (1)				Conduct:  4.2 (1)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Rifle Marksmanship Badge

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:

031112:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

040607:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 040528, tested positive for THC.

040610:	Substance Abuse Evaluation Report:  Applicant referred as a result of a command referral.  Diagnosis:  No diagnosis.  Recommendations:  Outpatient treatment.  Weekly visits with Bn SANCO until treatment.  Individual should be held strictly accountable for their actions.  Individual should be processed for administrative separation for illicit substance abuse.  [Extracted from supporting documents submitted by the Applicant.]

040617:	NJP for violation of UCMJ, Article 112a: At an unknown location, on or before 26 May 2004 wrongfully used marijuana, a controlled substance.
	Award:  Forfeiture of $596 per month for 2 months, restriction for 60 days.  Not appealed.

040803:	Applicant found qualified for separation.

040914:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, authority:  MARCORSEPMAN 6210.5.

Service Record Book did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040913 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).

In the absence of a complete discharge package, the Board presumed that the Applicant was properly notified, processed, and discharged in accordance with MILPERSMAN 1910-140 (formerly 3630600).  The Applicant bears the burden of overcoming this presumption of regularity by presenting any substantial and credible evidence.  The Applicant did not provide any documentary evidence to challenge the propriety or equity of the discharge.  Therefore, the Board considered the Applicant’s discharge proper and equitable.  Relief not warranted.

Whenever a member is involved in misconduct due to drug abuse, on the first offense, commanders shall process the member for administrative separation.  Characterization of service under other than honorable conditions 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 clear evidence in the service record that the Applicant used illegal drugs.  Indeed, the Applicant received nonjudicial punishment on 20040617 for violation of UCMJ Article 112a Wrongful use of controlled substance (marijuana).  Evidence of such misconduct may be used to characterize a member’s discharge under other than honorable conditions.  This conduct, which forms the primary basis for determining the character of service, falls well below that required for an upgrade in characterization of service.  Relief not warranted.

The Applicant informs the Board that he has “not touched a can of beer or any [tobacco] products” since discharge.  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 service, 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 Board found that the Applicant’s statements concerning post-service conduct, without documented evidence, do not mitigate the misconduct, which precipitated discharge.  No relief is granted on this basis.

The Applicant is advised that the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Since this issue does not serve to provide a foundation upon which the Board can grant relief, 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 post-service accomplishments or any other evidence related to the 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