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

ex-Pvt, USMC
Docket No. MD05-00062

Applicant’s Request

The application for discharge review was received on 20041004.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary record review.  The Applicant did not list a representative on his 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.  “On October 31, 2003, I received an other than honorable discharge from the United States Marine Corps.  I am requesting for an upgrade of my discharge.  I am sorry for the action that led to my discharge, and I am completely responsible for my actions.  I have learned from my mistake.  I am trying my best to continue to succeed in life.  I want to head in the right path.  I feel mature and confident that I will be productive given a second chance.”

Documentation

The Applicant did not provide any additional documentation for the Board to review.  He marked the box "WILL NOT BE SUBMITTED.  PLEASE COMPLETE REVIEW BASED ON AVAILABLE SERVICE RECORDS" in the “SUPPORTING DOCUMENTS” section of his DD Form 293.

However, the following additional documentation, submitted by the Applicant, was considered:

Five (5) character reference form letters

PART II - SUMMARY OF SERVICE

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

	Active:   			None			HON
	Inactive: USMCR (J)		000531 - 000913	COG

Period of Service Under Review:

Date of Enlistment:  000914		Date of Discharge:  031031

Length of Service (years, months, days):

	Active:    03  01  18
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  56

Highest Rank:  PFC			MOS:  3043 (Supply Administrative Clerk)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (*)			Conduct:  4.2 (*)

Military Decorations:  LtrApp

Unit/Campaign/Service Awards:  NDSM, SSDR (2)

Days of Unauthorized Absence:  (80 Days) 20030530-20030622 / 20030905-20031030

	* Extracted from Applicant’s discharge package.

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:

000530:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver was granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

010731:	Counseled for deficiencies in performance and conduct.  [Immaturity.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010731:	NJP for violation of UCMJ, Article 92:  … violate a lawful order …
		Violation of UCMJ, Article 134 (3 specs):
Specification 1:  … assault … your roommate, by choking and pushing him down …
Specification 2:  … was … disorderly in conduct …
Specification 3:  … threaten his roommate … by stating that he (Applicant) would make him pay for telling on him (Applicant) …
Awd red to Pvt/E-1, forf of $518.00 per month for 1 month, and 45 days restriction and extra duties.  Red susp for 6 mos.  Appealed.  (Appeal paperwork is not in the record; however, based on the discharge package it appears to have been denied.)

010917:	Counseled for deficiencies in performance and conduct.  [Underage drinking, Assault, disorderly conduct, and Communicating a threat.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030407:	NAVDRUGLAB [JAX] reported Applicant’s urine sample, received 030403, tested positive for THC.

030530:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a.
	Specification:  … did … wrongfully use marijuana.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Reduced to Pvt, forfeiture of $767.00 per month for 1 month, and confinement for I month.
	CA action 030530:  Sentence approved and ordered executed.
	
030530:	To confinement, Sentence of SCM.

030622:	From confinement, to duty.

031023:	Special Court-Martial.  Extracted from Applicant’s discharge.  Applicant was tried by Court-Martial for orders violation and false official statements package. (Record of trial is missing from the Applicant’s record.)

031029:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and “a Special Court-Martial conviction for Arson.”  The factual basis for this recommendation was the Applicant’s “special Court-Martial conviction of 23 October 2003, … Summary Court-Martial of 30 May … Nonjudicial Punishment of 2 August 2001...”  

031030:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of a pattern of misconduct and misconduct due to drug abuse as evidenced by the Applicant’s “special Court-Martial conviction of 23 October 2003, … Summary Court-Martial of 30 May … Nonjudicial Punishment of 2 August 2001...” 

031030:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights including the right to obtain copies of the documents used to support the basis for the separation.

031030:	SJA review determined the case sufficient in law and fact.

031031:	GCMCA [Commanding General, 2d Force Service Support Group] 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 20031031 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:  In the Applicant’s case, the Board discovered no impropriety or inequity and considers his discharge to be proper and equitable. A service characterization of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a member of the United States Marine Corps.  The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for Underage drinking, Assault, Disorderly conduct, and Communicating a threat; Summary Court-Martial for wrongful use of illegal substances; Special Court-Martial for failure to obey orders and making a false official statement; and the appropriate retention and discharge warnings.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, and demonstrated he was unsuitable for further service. A discharge upgrade to honorable would be inappropriate.  Relief denied.
 
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 the service.  The NDRB is authorized to consider outstanding 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.  Verifiable proof of any 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.  Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient documentation of good character and conduct to mitigate his misconduct while on active duty.  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.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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 P1900.16F), effective 01 September 2001 until Present.

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