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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00631

Applicant’s Request

The application for discharge review was received on 20060327.  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 did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070110.  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.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 13, Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded Or Authorized should read:  “Rifle Sharpshooter Badge, National Defense Service Medal, Sea Service Deployment Ribbon, Presidential Unit Citation, Global War On Terrorism Expeditionary Medal (Iraq), Combat Action Ribbon (Iraq),” and Block 28, Narrative Reason for Separation, should read:  “MISCONDUCT.”  The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity- Isolated incident

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20011106 - 20020218	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020219		Date of Discharge:  20040831

Length of Service (years, months, days):

Active:    02  06  13
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  76

Highest Rank:  PFC	MOS:  3521 

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (3)				Conduct:  4.3 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Sharpshooter Badge, National Defense Service Medal, Sea Service Deployment Ribbon, Presidential Unit Citation, Global War On Terrorism Expeditionary Medal (Iraq), Combat Action Ribbon (Iraq).

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:

040513:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 040507, tested positive for THC.

040624:	Summary Court-Martial.
	Charge: violation of the UCMJ, Article 112a.
	Specification: In that SNM did, at an unknown location, on or about 040504, wrongfully use marijuana.
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $596.00, restriction for 60 days, reduction to E-1.
	CA action 040719:  Sentence approved and ordered executed.

040628:	Applicant notified of intended recommendation for discharge as other than honorable by reason of misconduct, due to illegal drug use.  The factual basis for this recommendation was the Naval Drug Lab message of 040523.  Applicant informed the least favorable character of service possible was as other than honorable.  

040629:	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.

040802:	Consolidated Substance Abuse Counseling Center, Camp Pendleton, CA.  Applicant counseled this date regarding a medical officer evaluation or medical officer evaluation refusal.  Applicant refused evaluation.  

040804:	Commanding Officer, Combat Service Support Group 15 recommended Applicant’s discharge other than honorable by reason of misconduct due to drug use.

040816:	SJA review determined the case sufficient in law and fact.

040818:	GCMCA, Commander, 1st Force Service Support Group (Rear), 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 20040831 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).  

Equity- Isolated incident.  The Applicant contends that the discharge was inequitable because he had no other problems in 30 months of active duty and that his current discharge will impact employment opportunities.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  The Applicant plead guilty at a summary court-martial to a violation of UCMJ Article 112a (wrongful use, possession of a controlled substance) thus substantiating the misconduct for which he was separated.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  Relief denied.

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions 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 a summary court-martial for violation of Article 112a of the UCMJ.  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 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 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.  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