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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD06-00029

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 did not select a review type on the DD Form 293.  Based on NDRB policy, the Applicant will receive a discharge documentary record review.  The Applicant designated American Legion as the representative on the DD Form 293.

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 to the Board:

“I E_ R_ (Applicant), Had All my documents faxed to you to Request my discharge paper’s Be upgraded to the Present date (thank you).  I am Requesting this in order to Receive some medical issues.  And occupation issues.”

Representative submitted no issues.

Applicant’s Remarks:  Taken from the DD Form 293 to the Board.):

“I would very grateful if you can help me.  
Thank you”

Documentation

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

Ltr from The American Legion, dtd September 20, 2005
Fax copy of Applicant’s Social Security Card, undated
Applicant’s DD 214 (Member4)
Ltr from Commanding Officer, Naval Hospital, dtd July 7, 1999
Character Reference ltr from J. L. B_, dtd July 3, 2003
Applicant’s Treatment Schedule from Pediatric Express Care, dtd June 27, 2000

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19980210 – 19990201		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990202		Date of Discharge:  19990826

Length of Service (years, months, days):

Active:    00  06  24  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  42

Highest Rank:  PFC				MOS:  9900

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (2) 				Conduct:  3.9 (2)

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

98XXXX	Prior service drug waiver for Marijuana use (x24).	

980209:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

990614:	Counseling:  Advised of deficiencies in performance and conduct (Specifically; illegal usage of a controlled substance (marijuana) as verified by the NAVDRUGLAB MSG# R 042040Z JUN 99.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.  Applicant chose to submit a statement.

990617:	NJP for violation of UCMJ, Article 112a:  At Camp Guard, HqSptBn, SOI MCB, Camp Lejuene, between 990506 and 990520, wrongfully used marijuana.
Award:  Forfeiture of $479.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Not appealed.

990712:	Consolidated Drug and Alcohol Treatment Center Marine Corps Base,  
                        Camp Lejuene. Applicant briefed on Statement of Understanding of 
                        Treatment for substance abuse at a local Veterans Administration Medical             
                        Center.

990713:	Clinical Director, Alcohol Treatment Facility, Naval Hospital Camp Lejuene, Evaluation Report for Substance Abuse:  The Applicant was evaluated per reference (a) and (b) on 12 July 99 by a credentialed provider as a result of a command referral.  The diagnosis was Drug Abuse (Isolated Incident).
	Recommendation:  a. The Applicant should be held accountable for his actions, b. Recommend service member be processed for administrative separation per references (a) and (b), (c) The Applicant denied chronic or habitual use of controlled substances, and (d) Recommend Applicant to follow up with BAS as scheduled.

990723:	Letter from Commanding Officer, Marines Awaiting Training Company recommended to Commanding Officer, Headquarters and Support Battalion that the Applicant be discharged with an under other than honorable characterization of service by reason of misconduct due to illegal drug use.  Commanding Officer’s comments:  “Private R_ (Applicant) joined Camp Guard on 25 May 1999.  He received battalion NJP on 17 June and was dropped to MAT Company for using marijuana.  He has a drug waiver, is aware of the Marine Corps’ policy on illegal drug use and has displayed a blatant disregard for it.  Based on my personal observation, Private R_ (Applicant) used illegal drugs because he was using every reason to feel sorry for himself while he was home on boot leave.  He indicates that his uncle and a close friend died when he was in recruit training.  In all actuality, Private R_ (Applicant) was simply looking for justification to give in to his desires to use marijuana.  He lacked the moral courage and the discipline to adhere to the core values that had been instilled in him.  Private R_ (Applicant) shows absolutely no desires to remain in the Marine Corps and I feel that he would use illegal drugs again if given the opportunity.  He has no potential for future service. Based on Private R_ (Applicant)’s use of an illegal substance, I recommend that he be involuntarily separated from the Marine Corps per paragraph 6210.5 of the reference with an Other than Honorable characterization of service by reason of misconduct due to illegal drug use.”

990723:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with an under other than honorable characterization of service conditions The factual basis for this recommendation was based on Applicant’s use of marijuana as identified by positive unit urinalysis.  

990723:	Applicant advised of rights and having elected not to consult, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.  Applicant submitted written statements in rebuttal to the proposed separation.

990723:	Commanding Officer, Headquarters and Support Battalion, School of Infantry, Marine Corps Base, Camp Lejuene, recommended to Commanding General, Marine Corps Base, Camp Lejuene, that the Applicant be discharged from the Marine Corps by reason of misconduct due to drug abuse.  The factual basis for this recommendation was based upon Applicant’s use of marijuana as identified by enclosure (5).  Commanding Officer’s comments:  “Private R_ (Applicant) has demonstrated a blatant disregard for the Marine Corps’ policy towards drug use.  He has shown a definite lack of Honor, Courage and Commitment, and has proven to me that he does not possess the discipline for continued service in the Marine Corps.” 

990803:	Commanding Officer, School of Infantry, recommended to Commanding General, Marine Corps Base, that the Applicant be discharged under other than honorable conditions by reasons of misconduct due to drug abuse.

990810:	SJA review determined the case sufficient in law and fact.

990824:	Commanding General, Marine Corps Base, 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 19990826 by reason of misconduct due to drug abuse (A) with a service characterization 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 Applicant is requesting an upgrade of his discharge characterization. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. 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 Applicant’s service record is marred by award of nonjudicial punishment (NJP) for violation of UCMJ Article 112a (illegal drug use), thus substantiating the misconduct for which he was separated. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. 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.  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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief denied.
  
The Applicant implies that he is requesting an upgrade of his discharge characterization to general under honorable conditions in order to obtain medical and occupational benefits. The NDRB advises the Applicant that 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.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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.

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