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

Docket No. MD06-00415

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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD06-00415

Applicant’s Request

The application for discharge review was received on 20060118.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  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) first conduct a documentary review prior to any personal appearance hearing.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061116.  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 attached letter to the Board:

“Gentleman & Ladies,

I would like to start this letter by thanking the Board for it’s time and consideration in reviewing the issues surrounding my current discharge status.

On January the 28^th of 2002, I received a General Discharge, Under Other Than Honorable Conditions for misconduct involving substance abuse.  In mid to late September of 2001, I participated in a random urinalysis sweep of my unit which led to the detection of traces of marijuana in my system.  Earlier in the month I had attended a civilian wedding of a friend off of base.  While at the wedding I became intoxicated, and as a result of my lack of self control, and drunken behavior, I smoked marijuana.  I realize that an inebriated alcohol induced state does not offer justification for my actions, and I accept full responsibility for these events.

As a result of my pleading guilty to violating the Marine Corps’ Substance Abuse Policy, I received 45 days barracks restriction, 45 days working party, reduction in rank (E-4 to E-3), half months pay for two months, and my eventual discharge four months after my conviction.  I definitely felt that the punishment suited the crime.  With all due respect, as fair as my punishment was, I also do not feel that my discharge was necessary.  Up to the time of my offense I served honorably, and I still had plenty of valuable training, and experiences to contribute to my fellow Marines.

While serving I had the honor of becoming a member of the 13^th Marine Expeditionary Unit.  While on the MEU I participated in two CAX’s, extensive MOUT training at George AFB, numerous port ops involving embarking an entire ARG, CST, Arrival Air Control Group/Departure Air Control Group at March AFB, Helicopter Support Team Ops at Edwards AFB, recovery of decommissioned aircraft from bombing ranges at China Lakes AFB, WestPac 01-01, joint training with Australian Army in Australia, joint training with Singaporean Commandos, Operation Restore Hope in East Timor, Operation Southern Watch in Kuwait, and most importantly Operation Determined Response in which my detachment along with Kilo Company 3/1 provided rescue/recovery and logistical assistance for the brave Sailors of the USS COLE.

I never purposely smoked marijuana knowing that the possibility of discharge may follow.  I never wanted anything more in my life than to be a Marine, and on one unfortunate evening I lost my mind and made a mistake which I will now pay for the rest of my life.  I was an outstanding Marine and my intentions would never involve compromising my integrity.  I served for 38 consecutive months honorably, with 38 months of flawless service, a USMC Good Conduct Medal, along with 38 months without so much as ever forgetting to have a fresh haircut Monday morning.  I was and am proud of my accomplishments, and I come from a proud family of fighting men, dating back to the Civil War, who have made the ultimate sacrifice of life and limb in defense of our great nation.

I have sincerely apologized for my actions to all Marines both subordinate and superior.  I respectfully request that you take into consideration the circumstances surrounding my discharge, along with my outstanding service record when determining your outcome.  I feel that if my discharge is upgraded I could still contribute my services both efficiently and effectively.  Nothing discomforts me more knowing that I am no longer eligible to once again volunteer my service in defense of our great nation.  Thank you again, for your time and consideration.

God Bless & Semper Fi,
[signed]
E_ E_ E_(Applicant)”

Documentation

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

Applicant’s DD Form 214 (Member 4)
Character Witness Statement from O_ G_, SSgt, USMC, dtd August 15, 2003
Character Reference ltr from B_ S. A_, Sgt, USMC, dtd December 7, 2005
VA Form from State of Illinois Department of Veterans Affairs, dtd January 6, 2006-11-07
Cover Letter from Applicant, dtd April 17, 2006
History of Substance Abuse ltr from Applicant dtd April 17, 2006
Cover Letter from Applicant, dtd April 17, 2006
Letter of Recommendation/Character Voucher from V_ R_, dtd September 20, 2005 (2)
Character Reference ltr from J_ C_, Cpl, USMC, undated
FAX Cover sheet, dtd April 20, 2006
FAX Character Reference ltr from J_ C_, Cpl, USMC, undated
FAX Letter of Recommendation/Character Voucher from V_ R_, dtd September 20, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19980130 - 19980810	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19980811		Date of Discharge:  20020128

Length of Service (years, months, days):

Active:    03  05  18  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4 

Education Level:  12				AFQT:  63

Highest Rank:  Cpl				MOS:  0481

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (7)			Conduct:  4.5 (7)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Good Conduct Medal, Humanitarian Service Medal, Armed Forces Expeditionary Medal (Yemen), Sea Service Deployment Ribbon, Rifle Expert Badge (1^st Award).

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:

010926:	NAVDRUGLAB, SAN DIEGO, CA reported Applicant’s urine sample, received 010921 tested positive for THC.

011010:	NJP for violation of UCMJ, Article 112a: At HqCo, HqSvcBn, 1stFSSG, Did on or about 010919, SNM did at an unknown time and/or location wrongfully use Marijuana as a result of a positive result on a random sweep urinalysis.
	Award:  Forfeiture of $691.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  Not appealed.

011010:	Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your positive urinalysis dated 010919.  Applicant informed the least favorable character of service possible was under other than honorable conditions.

011012:	Counseling:  Advised of deficiencies in performance and conduct (Concerning illegal drug involvement, THC usage through urinalysis confirmed by Navy Drug Lab San Diego, CA.  The following message provided: Sample Taken Nav Message/date 010919 R261753Z Sep 01 Voluntary Consent), necessary corrective actions explained, sources of assistance provided.

011029:	Applicant refused Medical Officer’s Evaluation.  Applicant notified of VA treatment location.

011203:	Commanding Officer, Headquarters and Service Battalion, 1^st Force Service Support Group, recommended the Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “I believe this Marine has no further potential for service and does not realize the severity of the offense he committed.  Before his nonjudicial punishment, Lance Corporal E_ was a Corporal with over three years of time in service.  Not only did he have a successful deployment with an MSSG but he also attended an abbreviated Corporal’s Course aboard ship.  He had all the tools he needed to be a hard charging Corporal working on becoming a Sergeant.  Yet, four days after terrorist attacked our country, Lance Corporal E_ could not stand up to peer pressure from civilians while attending a wedding party.  I concur with the Company Commander in her endorsement, ‘if we can’t trust him to make the right decision when confronted with drugs, then we can’t trust him at all’.” 

020107:	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.

020114:	SJA review determined the case sufficient in law and fact.

020114:	GCMCA, Commander, 1^st Force Service Support Group, directed the Applicant's discharge 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 20020128 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 Applicant desires an upgrade based on quality of service.  Whenever a Marine is involved in misconduct due to drug abuse, on the first offense, commanders shall process the member for administrative separation.  There is clear evidence in the service record that the Applicant used illegal drugs.  Indeed, the Applicant’s record is marred by nonjudicial punishment on 20011010 for violation of UCMJ Article 112a Wrongful use of a 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 his service, falls well below that required for an upgrade in characterization of service.  An upgrade to honorable would be inappropriate; therefore relief is denied.

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 these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

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.  The Applicant submitted four character references for consideration.  The Applicant’s efforts need to be more encompassing to include 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.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge.  And so, no relief is granted on this basis.

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.

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