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Docket No. MD06-00630

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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00630

Applicant’s Request

The application for discharge review was received on 20060216.  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 documentary record discharge review.  The Applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070118.  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 - ISSUES AND DOCUMENTATION

Decisional Issues

	Equity – Prior good service

	Equity – Youth and immaturity

	Equity – Post service (per American Legion)

Documentation

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

Applicant’s DD Form 214
Character Reference ltr from T_ F_ from SEMPER Financial, LLC, undated
Character Reference ltr from N_ M_, dated January 26, 2006
Character Reference ltr from J_ V. D_, dated January 22, 2006
Character Reference ltr from D_ H_, dated January 23, 2006
Eight-two pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20000324 - 20000416	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000417		Date of Discharge:  20020124

Length of Service (years, months, days):

Active:    01  09  08  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  12 days
	Confinement:		    5 days

Age at Entry:  24

Years Contracted:  4

Education Level:  12				AFQT:  37

Highest Rank:  LCpl				MOS:  3533 (Motor Vehicle Operator)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (5)				Conduct:  4.1 (5)

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

010711:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010706, tested positive for methamphetamine.

010723:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010718, tested positive for amphetamine and methamphetamine.

011105:	NJP for violation of UCMJ, Article 112a:  Wrongful use methamphetamine.
	Award:  Forfeiture of $584.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

011128:	Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of misconduct due to drug abuse.  Applicant informed the least favorable character of service possible was as under other than honorable.

011128:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

011129:	Applicant refused medical officer’s evaluation.

011204:	Commanding Officer recommended Applicant be discharged under other than honorable characterization due to drug abuse.  Commanding Officer’s comments:  “During the Battalion Commander’s separation Assessment Interview conducted on 011128, PFC M_(Applicant) indicated that he wanted to “Stay Marine”.  He suggested that he was being treated unfairly because the second urinalysis was conducted within a few weeks of his initial urinalysis and the residuals may have affected the outcome of his 2^nd Urinalysis.  I pointed out to him that we sometimes do urinalysis twice a month to take out the predictability of the test, and that his second urinalysis results were over 10 times higher than his initial urinalysis.  His irresponsible illegal drug use indicates that his continued presence in the Battalion, and the Marine Corps, will lower morale and standards.”

011211:	Counseling:  Advised of deficiencies in performance and conduct (Illegal drug use.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative separation.  Applicant chose to make a statement.

011225:	Applicant to unauthorized absence at 0730.

020109:	Applicant from unauthorized absence at 1245 (12 days/surrendered).

020111:	NJP for violation of UCMJ, Article 86: UA (AWOL) from 0730, 011225 to 1250, 020109.
	Award:  Forfeiture of $511.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Not appealed.

020122:	SJA review determined the case sufficient in law and fact.

020123:	GCMCA, Commander, 1^st Marine Division (Rein), 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 20020124 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).

Equity – Prior good service.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  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 irrefutable evidence that the Applicant’s conduct during his time in the Marine Corps was not honorable.  Indeed, the Applicant’s records contain:
•	Nonjudicial punishment proceedings on 20011105 for violation of UCMJ Article 112a Wrongful use of a controlled substance and
•	Nonjudicial punishment proceedings on 20020111 for violation of UCMJ Article 86 Unauthorized absence.
The Applicant’s 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 would be inappropriate.  Relief denied.

Equity – Youth and immaturity.  The Applicant contends that his discharge was inequitable because of his youth and immaturity at the time of service.  The Board recognizes that serving in the Marine Corps is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  Most servicemembers begin their service at a relatively young age.  It must be noted that despite their relative youth and immaturity, the vast majority of these members still serve honorably and therefore earn their honorable discharges.  In fairness to those members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  After a thorough review, the Applicant’s records did not show that he was not responsible for his conduct and therefore should not be held accountable.  The Board concluded that his service was equitably characterized.  Relief on this basis is denied.

Equity – Post service.  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 is advised that the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  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 of the propriety and equity of the discharge.  Since these issues do not 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