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


FOR OFFICIAL USE ONLY


ex-PFC, USMC
Docket No. MD06-00294

Applicant’s Request

The application for discharge review was received on 20051004 . 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 20061025 . 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.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and from an attached letter to the Board:

“ I’m requesting an upgrade because I would like to receive benefits, especially for college funds .”

“To Whom It May Concern;

My name is M_ O_ [Applicant], and on December 19 ^th , 2000 I was discharged from the Marine Corps with a General (Under Honorable Conditions). This discharge does not reflect my true character, and I wish to change the discharge in hopes of providing a better future for myself and my daughter.

I went into the service right out of high school in hopes to prepare myself mentally and financially for the future. I chose the Marine Corp because I thought it would offer the toughest challenges and the sweetest rewards. My intentions were to do my four years of service, receive and honorable discharge and to go to college.

While serving in the Marine Corps I was assigned to 2nd Battalion 5th Marines as an administrative clerk with H&S Company. I took my duty serious and did my best to be a good example to all Marines. Although I was in an MOS that was slow to promote I continuously strived to achieve the next rank.

From the rank of Private to Lance Corporal I was always able to establish a good rapport with my superiors and was soon running the orders and travel claims section for my office. As an administrative clerk in what was the CONAD (consolidated administration) office I worked with the S-1, S-3, S-4, and all of the line companies.

While in boot camp I was never a squad leader or guide. I was just part of the platoon and took pride in my drill, inspections, PFT’s, water qualifications, and military knowledge. I believe I was a strong recruit who accepted every challenge with a positive attitude. In boot camp I developed a sense of pride for myself and knew that I would be able to achieve whatever I put my mind to.

While at MCT I was a fire team leader and took pride in duties. I was congratulated many times from my superiors for my excellent work and motivation. This was positive reinforcement, as I knew that my job in the Marine Corps was not going to be in the field, but rather, it would in the office.

After MCT I was stationed at Camp Lejuene for administrative school. I achieved a squad leader position and took the job seriously. The entire class received a Letter of Appreciation for our participation in the landscaping of the administrative classroom area.

After graduating from administrative school I was stationed at 2 ^nd Battalion ₁ st Marines. I began working as an order clerk under the supervision of Corporal K_. Before deployment on a Westpac, I was moved to the SRB side of the office. Corporal K_ saw to it that while on ship I would be back under his supervision. Corporal K_, Lance Corporal H_ and I were responsible for maintaing an accurate accountability report for the battalion and all attached units. The battalion and the attached units were housed on three different ships-the same report was also our responsibility while training in Kuwait. Our other duties were to help Marines that required emergency leave from the ship, and all other administrative duties. After returning from deployment I remained at ₂ nd Battalion ₁ st Marines for several months. It was after we returned to CONTIS and Corporal K_ left the Marine Corps that I became the Orders Chief. Due to a lack of time remaining in the Marine Corps I was reassigned to 1 ^st Marine Division at Division Schools.

While being stationed at Division Schools I worked as the acting S-1 Chief. My duties included maintaining an accurate accountability report for all the visiting companies and all the Marines stationed at Division Schools, preparing graduation certificates, and all other administrative duties. It was while at division schools that I was discharged.

I tested positive on a urinalysis test and processed for discharge with an NJP. I never saw a lawyer concerning my discharge. I was not addicted to drugs nor did I ever use them at any other time while in the military. I knew what I had done was wrong and I wasn’t going to try and “weasel” my way out of it. To this day I still regret my poor decisions as a young man and a Marine. It is something I wish I could change, but instead it is something I’ve learned to accept.

I do not believe that the reason for my discharge was wrong, I believe that I was young and made a very stupid mistake with lasting consequences that do not reflect my true character, now or then. I knew the drug use was illegal and that the consequences would result in a discharge. I did what I did, and all I can do about that is look back in regret, and to the future with a plan for great things.

I am currently employed at the SoCo Group Inc. which is an oil distributor in Southern California. I achieved the position of assistant plant manager in little over a year. My military experience not only aided in my getting the job, it also helped me gain my promotion. I am also enrolled at a community college working on receiving a certification in child development. I hope to transfer to a State University when I have met all the requirements for a transfer.

By updating my discharge I hope to receive any benefits that I am eligible to receive. I also hope to erase an embarrassing mistake from my past. I believe my performance at my job and school reflect highly on the Marine Corps and the young man it turned me into. Most everybody I meet can’t believe that I was a Marine, but I tell them it’s the truth and it’s the Marine in me that has made me who I am today: a young, proud, hard-working, and honest young man with the strength and courage to achieve whatever it is I set my mind to.

I appreciate the time of those who have reviewed my case.

Best Regards,

M_ O_ (Applicant)”

Documentation

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

Applicant’s DD Form 214
Applicant’s DD Form 215
Reference ltr from RADM D_ D. W_, Dental Corps, U.S. Navy, dtd January 17, 2005
Reference ltr from D_ A_, General Manager, The SoCo Group Inc, dtd July 27, 2005
Business Card from D_ A_, General Manger
College Transcript from Grossmont College

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PART II - SUMMARY OF SERVICE

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

         Inactive: USMCR (DEP)    19960709 - 19970707       COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 19970708              Date of Discharge: 20001219

Length of Service (years, months, days):

Active: 0 3 0 5 12
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 1 7 (Parental Consent)

Years Contracted: 4

Education Level: 12                                 AFQT: 58

Highest Rank: LCpl                                   MOS: 0151

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: 4 . 4 ( 9 )                        Conduct: 4 .0 ( 9 )

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksman Badge, Letter of Appreciation, Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal , Navy Unit Commendation

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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 :

990519 :  NJP for violation of UCMJ, Article 86 : In that SNM on or about 0001, 990515 without authority absent himself from his appointed pl o f du ty to wit: USS Boxer, and did remain so absent until 2346, 990515.
         Violation of UCMJ, Article 92 : In that SNM on or about 990515 having knowledge of a lawful order issued by the Commander 13 ^th MEU (SOC) USS Boxer to wit: all E-3 and below will secure fr liberty no later than 2400, failed to obey that order .
         Award: Forfeiture of $ 537. 00 pay per month for 2 month s (suspended for 90 days) , restriction and extra duty for 45 days, reduction to E- 2 . Not appealed.

001108 :  NAVDRUGLAB, San Diego, CA , reported Applicant’s urine sample, received 001103 , tested positive for cocaine .

001115:  Applicant refused Medical Officer’s evaluation.

001117:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
         Award: Forfeiture of $500.00 pay per month for 2 months (Forfeiture of $500.00 pay per month for 1 month suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2. Not appealed.

Xx11 xx :  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 your positive urinalysis dated 001101. Applicant informed the least favorable character of service possible was under other than honorable conditions.

00 1127 :  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

001127:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Dec because of charges preferred. Applicant chose not to make a statement.

001207 :  Commanding Officer, Headquarters Battalion, 1 ^st Marine Division recommended to Commanding General, 1 ^st Marine Division that Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: “Based on the above, it is apparent that PFC O_ (Applicant) has no potential for further productive service. The documented instances of his misconduct represent a “significant departure” from the conduct expected of all Marines. Because of the unsatisfactory quality of this Marine’s conduct, I recommend that he be discharged with a characterization of service as under other than honorable.”

00 1207 :  SJA review determined the case sufficient in law and fact.

001211 :  GCMCA, Commanding General, 1 ^st Marine Division directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse .

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20001219 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 p roper and equitable (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

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. 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. There is credible evidence in the record that the Applicant used illegal drugs. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. The Applicant’s service record was marred by two nonjudicial punishments proceedings for Violations of UCMJ Articles 86 (unauthorized absence), 92 (violation of a lawful order), and 112a (use of a controlled substance). Violations of Articles 92 and 112a are considered serious offenses for which a punitive discharge is authorized at courts martial. In the Applicant’s case, the Board could discern no impropriety or inequity. While the Applicant mentioned that he “never saw a lawyer concerning” his discharge, there is no indication in the record that he was denied an opportunity to consult with counsel. The signed notification of separation proceedings specifically informed the Applicant that he had a right to counsel. He affirmatively waived that right in his election of rights signed 20001127. The Board considers the Applicant’s discharge to be proper and equitable. Relief denied.

The Applicant also provided some evidence of post service accomplishments to support upgrade of his discharge. However, there is no law or regulation that provides for upgrade of an unfavorable discharge based solely on the passage of time or post-service conduct. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge to the extent that 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 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. 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. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade. Relief denied.

The Applicant stated that he wanted an upgrade to obtain educational benefits. The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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. 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 .

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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