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

FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD06-00775

Applicant’s Request

The application for discharge review was received on 20060426.  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 available 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 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.
IMPROPRIETY:  Applicant was not given an opportunity to “present [his] case.”

Documentation

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

Statement from Applicant, dated February 8, 2006 (2 pages)
Character Reference ltr from I_ B_, dated December 11, 2005
Character Reference ltr from J_ O_, Chief of Police, Port Isabel Police Department, dated December 28, 2005
Character Reference ltr from A_ P_, Port Isabel Police Officer, dated December 29, 2005
Character Reference ltr from Sgt G_ C_, Port Isabel Police Department, dated December 31, 2005
Character Reference ltr from M_ A. M_, Interim Director, Criminal Justice Institute, The University of Texas at Brownsville and Texas Southmost College, dated February 24, 2006
Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19950705 - 19960616	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19960617		Date of Discharge:  19980512

Length of Service (years, months, days):

Active:    01  10  26
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  47

Highest Rank:  LCpl				MOS:  0351 (Antitank Assaultman)
							 8152 (Security Guard)

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):  Certificate of Commendation

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:

950618:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

980316:	Applicant permanently decertified from the Personnel Reliability Program (PRP).

980326:	NJP for violation of UCMJ, Article 112a: Wrongful use Anabolic Steroids.
	Award:  Forfeiture of $519.00 per month for 2 months (1 months forfeiture suspended for three months), restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

980326:	Counseling:  Advised of deficiencies in performance and conduct (NJP on 980326 for viol of Art 112a, wrongful use of a controlled substance.  Applicant informed he was being processed for separation for minor disciplinary actions or pattern of misconduct.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

980326:	Counseling:  Advised of deficiencies in performance and conduct (Illegal drug involvement; specifically, usage of Anabolic Steroids.) and advised being processed for administrative discharge.

980512:	DD Form 214:  Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, authority:  MARCORSEPMAN PAR 6210.5.

Service Record Book did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980512 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 available 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).

The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  In the Applicant’s case, in the absence of a complete discharge package and without credible and substantial evidence to refute the Board’s presumption, the Board invoked the presumption of regularity.  Specifically, the Board presumed that the Applicant was properly notified of his Commanding Officer’s intent to administratively process the Applicant for separation, that the Applicant was afforded all rights which he elected at notification and that the Applicant’s discharge was directed by proper authority.  

The Applicant implies that his discharge is inequitable because wrongful use of a controlled substance is the only “mark on [his] record.”  The Applicant also implies that his discharge is improper because he did not have an “opportunity to present [his] case.”  There is credible evidence in the record that the Applicant used illegal drugs.  The use of illegal drugs is a violation of Article 112a of the UCMJ and the commission of a serious offense.  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.  Neither the evidence of record nor the statement and documentation submitted by the Applicant demonstrate that the Applicant was not responsible for his conduct, that he should not be held accountable for his actions or that the Applicant’s was not afforded all rights he elected.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief denied.

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 sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  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 31 Jan 97 until 31 August 2001.

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 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