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Docket No. MD06-00398

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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMCR
Docket No. MD06-00398

Applicant’s Request

The application for discharge review was received on 20060104.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) and the Narrative Reason for Separation be changed to “Other.”  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 20061214.  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 characterization of the discharge and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues:

Equity – post service 

Documentation

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

1 Page of Applicant’s Service Record
Applicant’s DD Form 215
Applicant’s DD Form 214  (Service 2)
Ltr from Applicant, dtd December 13, 2005  (2 pages)
Copy of Teton County Sheriff ID, badge 31-5
Oath of Office for Deputy Coroner, dtd May 27, 2005
Oath of Office for Reserve Deputy Sheriff, dtd November 27, 2002
Award for Basic Law Enforcement certificate, dtd August 18, 2005
Diploma for completion of Montana Law Enforcement Officers Basic Course #123, dtd December 10, 2004
Award from the State of Montana for Correction/Detention Officers Basic Certificate, dtd February 19, 2004
Certificate for the completion of an 88 hour reserve officers training course, dtd January 14, 2003
Certificate of Commission for the State Of Montana Notary Public, dtd March 1, 2002
Certificate of Completion of Apprenticeship of Correction Officer under the sponsorship of State of Tennessee, dtd May 10, 1996
Certificate of Completion from the Tennessee Correction Academy, dtd May 26, 1995
Ltr of Commendation, Special Events, July 3-4, dtd July 6, 2003
Character Reference ltr from Cascade County, Regional Youth Services Center, S_ B_, Administrator/CCRYSC, dtd May 9, 2002
Ltr of recognition for excellent work, S_ B_, Administrator, dtd February 2, 2000 
Employee of the Month April 2000 at Cascade County Youth Services
Character Reference ltr from Lt. R_ L_, Northeast Correctional Complex, Mountain City, TN, dtd October 31, 1997
Ltr of recommendation, P_ C_, Sgt, 2^nd Shift Yard Supervisor, dtd March 19, 1997
Ltr of recommendation, E_ T_, Cpt, 2^nd Shift Commander, dtd March 19, 1997
Certificate of Recognition for hard work and dedication at Northeast Correctional Center
Athletic Award for recognition of outstanding performance in Lacrosse, dtd May 7, 1994
Student Transcripts for Law Officer’s Basic Course for period 040913 – 041210 (2 pages)
22 pages of Applicant’s Performance Evaluations
Certificate of Training for Indoor Cannabis Cultivation at Midwest Counterdrug Training Center, dtd May 5-6 2005
Certificate for completion of Law Enforcement Officer Basic #123, dtd September 12, 2004 through December 10, 2004
Certificate of Completion of Breath Test Specialist from Forensic Science Division, Department of Justice, State of Montana, dtd December 2004
Certificate of Completion of First Responder Course, R_ L_, Program Manager, Basic Program, Lead Instructor, Montana Law Enforcement Academy, dtd December 10, 2004
Certificate for completion of 36 hours in Intoxilyzer, DUI Detection and Standardized Field Sobreiety Testing, dtd November 29-December 3, 2004
Certificate of Recognition for 2 hours of training in A.S.P. Expandable Baton at The Montana Law Enforcement Academy, dtd November 12, 2004
Certificate of Recognition for 4 hours of training in Use of Oleoresin Capiscum (OC) included Direct Facil Exposure at the The Montana Law Enforcement Academy, dtd November 11, 2004
Certificate of Completion for Coaching the Emergency Vehicle Operator II Police Course, Montana Law Enforcement Academy, dtd October 2004
Certificate of Recognition for satisfactory completion of The Gallagher-Westfall Group’s Forty-Hour Seminar, Leadership and Mastering Performance Management:  A Supervisory Mid-Management Seminar, dtd April 28-May 2, 2003
Certificate of Completion of First Line Supervisor, Montana Peace Officers Standards, dtd April 28, 2003 – May 2, 2003
Certificate from Cascade county Sheriff-Coroner’s Officer firearms division for completion of 34 hour reserve officer firearms training course, dtd November 8^th, 2002
88 HR Reserve Training Course 2002  (2 pages)
Certificate of Continuing Education, Rockhurst University Continuing Education Center, National Seminars Group, dtd August 20, 2002
Certificate of Training for completion of OC-10 (Oleoresin Capsicum) Certification, from Great Falls Police Department
Certificate for Completion of 8 hours of P.O.S.T Certified Cell Extraction-SRT Training on February 23, 2001
News Article from Tribune
Pictures of Applicant and Family
14 Pages from Applicant’s Service Record Book

PART II - SUMMARY OF SERVICE

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

	Inactive:   USNR (DEP)	19921027 – 19921117	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19921118		Date of Discharge:  19941207

Length of Service (years, months, days):

Active:    00  06  08  
	Inactive:  01  06  12

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  8 (6 years active)

Education Level:  12 + College		AFQT:  86

Highest Rank:  LCpl				MOS:  0331/1391

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (3)				Conduct:  4.4 (3)

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

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority:  MARCORSEPMAN 6210.5.

Chronological Listing of Significant Service Events:

920127:	Pre-service waiver for RS Level granted.

921026:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.  

930405:	NJP for violation of UCMJ, Article 134:  
Specification:  In that Pvt D_ (Applicant), did, on or about 930326, violate VA state code 4-62 by consuming alcoholic beverages under the legal age of 21.
Award:  Forfeiture of $100.00 pay per month for one month, restriction for 14 days.  Not appealed.

930420:	Counseling:  Advised of deficiencies in performance and conduct (Alcohol related incident, specifically, violation of VA State code 4-62, drinking under the legal age of 21.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940518:	NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 940511, tested positive for THC.

940624:	Applicant notified of intended recommendation for discharge.  Applicant informed the least favorable character of service possible was discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was [the Applicant’s] positive drug urinalysis test on or about 940507.  

940626:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.  

940722:	Officer-In-Charge, Inspector-Instructor, 3^rd & 4^th Platoons, Bulk Fuel Company C, 6^th Engineer Support Battalion, recommended that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  On 940507, a unit sweep urinalysis was conducted by this unit.  As a result of that urinalysis, Lance Corporal D_ [Applicant] tested positive for THC.  “Based upon the foregoing we believe Lance Corporal D_ [Applicant] does not possess mobilization potential and therefore should be administratively separated as expeditiously as possible.” 

941026:	SJA review determined the case sufficient in law and fact.

941027:	Commanding Officer/Inspector-Instructor, 6^th Engineer Support Battalion, recommended that the Applicant be discharged by reason of misconduct due to drug abuse.

941103:*	Commanding General, Marine Reserve Force, directed the Applicant’s discharge under other than honorable conditions by reasons of misconduct due to drug abuse.  *[There are two copies of this document in the service record.  One has two dates – 941103 and 941117.]

941207:	Officer-In-Charge/Inspector-Instructor informed the Commandant of the Marine Corps that the Applicant was discharged under other than honorable conditions by reason of misconduct due to 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 19941207 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).

The Applicant requests an upgrade of his discharge and a change of the narrative reason to “other.”  Despite a servicemember’s record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  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.  There is credible evidence in the record that the Applicant used illegal drugs.  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.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  Relief denied.

The Applicant provided significant post service documentation in support of his upgrade.  The following is provided for the edification of the Applicant.  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 may 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 board does not consider the post-service documentation provided to be sufficient to mitigate the misconduct that resulted in the characterization of 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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