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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00532

Applicant’s Request

The application for discharge review was received on 20060302.  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 20070103.  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 General (Under Honorable Conditions) by reason of misconduct due to drug abuse.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

The Applicant submitted no decisional issues for consideration.

Documentation

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

Applicant’s DD Form 214
Certificate of Commendation, dtd January 27, 1997
Letter from Applicant’s father, undated
Meritorious Mast Certificate, dtd April 25, 1996

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19950310 - 19950424	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19950425		Date of Discharge:  19961220

Length of Service (years, months, days):

Active:    01  07  26
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20 

Years Contracted:  4 

Education Level:  12				AFQT:  50

Highest Rank:  PFC				MOS:  1141

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (5) 			Conduct:  4.0 (5) 

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

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MARCORSEPMAN 6210.5.

Chronological Listing of Significant Service Events:

950309:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

950922:	Counseling:  Advised of deficiencies in performance and conduct (Dereliction of duty, disobeying a lawful order, and leaving weapon unattended.  SNM was caught sleeping on guard duty while assigned to an armed post.  SNM left his weapon unattended and it was confiscated by SOG/COG), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960307:	Counseling:  Advised of deficiencies in performance and conduct (Violation of the UCMJ, Art 86, specifically, on 960223 failed to go to the safety lecture which resulted in termination from the rifle range), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

960617:	NAVDRUGLAB, JACKSONVILLE, FL, reported Applicant’s urine sample, received 960603, tested positive for THC.

960619:	NJP for violation of UCMJ, Article 112a: In or around the month of May 1996, did knowingly and wrongfully use THC.
	Award:  Forfeiture of $437.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Not appealed.

960624:	Counseling:  Advised of deficiencies in performance and conduct (illegal drug involvement, specifically my usage of marijuana), advised that processing for administrative separation is mandatory.

960702:	Director, Substance Abuse Counseling Center, Marine Corps Air Station Cherry Point, screened Applicant and determined he did not to meet DSM-IV criteria for cannabis/alcohol abuse or dependence.

960729:	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 is in-service substance abuse namely, THC, as evidenced by NAVDRUGLAB, JAXFL, msg 171702Z Jun 96 and page 12 of service record book.  Applicant informed the least favorable character of service possible was as under other than honorable conditions.

960729:	Applicant advised of rights and having elected not to consult with counsel, elected to appear before an Administrative Discharge Board.

960821:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse and, by a vote of 2 to 1, recommended separation with a characterization of under honorable conditions (general).

961029:	Commanding Officer concurred with the Administrative Discharge Board and recommended that Applicant’s be discharged with a general under honorable conditions character of service by reason of misconduct due to drug abuse.

961204:	SJA review determined the case sufficient in law and fact.

961204:	GCMCA, Commanding General, 2d Marine Aircraft Wing, directed the Applicant's general (under honorable conditions) discharge by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19961220 by reason of misconduct due to drug abuse  with a service characterization of general (under honorable conditions) (A and B).  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 (C and 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.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions or general discharge 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.  The Applicant’s service was marred by two retention warnings for dereliction of duty, sleeping on guard duty and unauthorized absence.  The Applicant was subject to nonjudicial punishment proceedings for violating Article 112a of the UCMJ.  The Applicant’s violation of Article 112a of the UCMJ is considered the commission of a serious offense.  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 Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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 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 relevant post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  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 18 Aug 95 to 30 Jan 97.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a, wrongful use of a controlled substance.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  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