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

ex-Pvt, USMC
Docket No. MD05-00040

Applicant’s Request

The application for discharge review was received on 20040930.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107.  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/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Sirs, I would like to have my discharge updated so that I may apply for a V.A. ID, and to receive benfits.  Also I would like to aply for a government position but can’t due to discharge.  I respectfully request to have my discharge upgrade to honorable.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960620 - 961216	COG

Period of Service Under Review:

Date of Enlistment:  961217		Date of Discharge:  980819

Length of Service (years, months, days):

	Active:    01  08  03  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  28			Years Contracted:  4 

Education Level:  12			AFQT:  44

Highest Rank:  PFC			MOS:  1345

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (1)			Conduct:  4.0 (1)

Military Decorations:  None

Unit/Campaign/Service Awards:  REB, SSDR

Days of Unauthorized Absence:  12

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:

960620:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

970502:	Counseled for deficiencies in performance and conduct.  [Being disrespectful to a NCO when told to leave the area around Air Force Detachment Barracks, combined with the lack of responsibility, judgment, and maturity.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970701:	Counseled for deficiencies in performance and conduct.  [Your poor judgment and lack of responsibility by being involved in a alcohol related incident which caused your apprehension by civil authorities for domestic violence.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970824:	Counseled for deficiencies in performance and conduct.  [Conduct detrimental to good order and discipline.  Specifically, on 970816 you were drunk and disorderly and verbally disrespectful towards a Marine NCO.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980107:	NAVDRUGLAB [San Diego, CA], reported Applicant’s urine sample, received 971224, tested positive for cocaine.

980421:	Summary Court-Martial.
Violation of UCMJ, Article 86.
Specification 1:  UA from 971122 to 971204.
Violation of UCMJ, Article 112a.
Specification 2:  Wrongful use of cocaine on or about 971205.
Finding: Guilty to all charges and specifications.
Sentence:  Forfeiture of $600.00, confinement for 30 days, reduction to Pvt.  
CA action: 980429.  Approved and ordered executed.

980513:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your positive urine sample for cocaine.  

980513:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980513:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was Applicant’s positive urine sample for cocaine.  

980601:	SJA review determined the case sufficient in law and fact.

980602:	GCMCA [Commander, 3d FSSG] 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 19980819 under other than honorable conditions for misconduct due to drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1.  The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  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.

There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety is evident during the Applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, to enhance employment opportunities, or for good conduct in civilian life, subsequent to leaving the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  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