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

FOR OFFICIAL USE ONLY

ex-LCpl, USMC
Docket No. MD06-00748

Applicant’s Request

The application for discharge review was received on 20060511.  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 20070216.  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 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS,” and Block 25, Separation Authority, should read:  “MARCORSEPMAN 6210.5.”  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.
Propriety – Preservice conviction was used against Applicant.

Documentation

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

Applicant’s DD Form 214
Seven pages from Applicant’s service record
Three page excerpt from document entitled, “3d FSSG Handbook for CG Inspection,”  undated

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19930226 - 19931012	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19931013		Date of Discharge:  19951101

Length of Service (years, months, days):

Active:    02  00  19
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4

Education Level:  12				AFQT:  43

Highest Rank:  LCpl				MOS:  0481

Final Enlisted Performance Evaluation Averages (number of marks):

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

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

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:

930225:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

931013:	6th MCD MGD waiver granted.

950620:	NJP for violation of UCMJ, Article 112a: On or about 950601, wrongfully use THC, a controlled substance.
	Award:  Forfeiture of $232.00 per month for 1 month, restriction and extra duty for 14 days.  Forfeiture suspended for 6 months.  Not appealed.

950711:	Applicant signed Veterans Administration statement of understanding.  Applicant elected not to receive treatment in conjunction with discharge.

950714:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was Applicant’s nonjudicial punishment which evidenced illegal usage of drugs.  Applicant informed the least favorable character of service possible was as under other than honorable conditions.

950721:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

950724:	Commanding Officer recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

950828:	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, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

950910:	Commanding Officer concurred with the Administrative Discharge Board’s findings and recommendations.

951017:	SJA review determined the case sufficient in law and fact.

951018:	GCMCA, Commanding General, 1st Force Service Support Group, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The Commanding General indicated he considered the Applicant’s preservice drug waiver while evaluating the Applicant’s potential for future service, but not when determining the Applicant’s character of service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19951101 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).  

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 nonjudicial punishment proceedings for violation of Article 112a of the UCMJ, 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 Applicant contends that his discharge is inequitable because his drug use was an isolated incident.  The Applicant also implies that his discharge is not in accordance with the Commanding General’s Inspection Checklist the Applicant provided as a supporting document.  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.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant implies that his discharge is improper because his preservice “conviction” was “used against” him.  The evidence of record shows the consideration of the Applicant’s preservice drug use was in compliance with regulations.  In the letter directing the Applicant’s discharge, the Commanding General specifically indicates that the Applicant’s waiver for drug abuse was considered only when determining the Applicant’s potential for retention.  There is no evidence in the record, or the documentation submitted by the Applicant, that the Applicant’s preservice drug use or enlistment waiver was improperly considered.  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 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 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.  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.  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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