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

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ex-Pvt, USMC
Docket No. MD05-00098

Applicant’s Request

The application for discharge review was received on 20041020.  The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118.  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.  “I joined the Marine Corps on Sep 11, 2001 because I wanted to serve my country.  I didn’t know how to deal with the stress from moving from a small town in Ky to Washington D.C., so I started drinking to forget about everything.
But that just caused more problems.  I failed a drug test from when I was drunk and don’t even remember doing any thing.  But befour I even failed the drug test I was to be out on Admin Separation.  
I still have knee and foot pain that was caused by the Physical Demand of the Marine Corps.
That is why I feel my discharge should be upgraded.
Thank you” 

Documentation

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

Applicant’s Ltr, undated
Patient discharge instructions w/ follow-up appointment schedule (pages 1 and 6)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		010529 - 010910	COG

Period of Service Under Review:

Date of Enlistment:  010911		Date of Discharge:  030228

Length of Service (years, months, days):

	Active:    01  05  17
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  20			AFQT:  45

Highest Rank:  PFC			MOS:  0151

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0			Conduct:  3.4*
[Marks extracted from SJA ltr of 030212]

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, NDSM

Days of Unauthorized Absence:  None

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:

010518:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

020308:	NJP for violation of UCMJ, Article 92:  Violated CJAO 1700.1G by consuming alcohol under the legal age.  Article 134:  Drunk and disorderly conduct.  
Awarded forfeiture of $300.00 per month for 2 months, restriction and extra duties for 15 days.  $300.00 for one month and 9 days restriction and extra duties susp for 3 mos.  Not appealed.

020705:	Counseled for deficiencies in performance and conduct.  [Failure to report to work and conspiring with PFC W_ in making a false official statement.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020906:	NAVDRUGLAB [JACKSONVILLE], reported Applicant’s urine sample, received 020830, tested positive for [COCAINE].

021220:	Summary Court-martial:
	Charge I:  Violation of Article 112a.
	Finding:  Guilty.
	Sentence:  Reduction to E-1, forf 2/3 pay for one month and 30 das confinement.
	CA 021228:  Ordered executed, except forf susp for 6 mos.

021220:	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.

021220:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your wrongful use of cocaine.  

030115:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent and alcohol dependant.  Applicant previously received treatment for alcohol dependency at Malcolm Grow Hospital, Andrews AFB.

030212:	SJA review determined the case sufficient in law and fact.

030224:	GCMCA [CG, MCB QUANTICO] 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 20030228 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.   There is credible evidence in the record that the Applicant used illegal drugs.  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.  Additionally, administrative separations for misconduct take precedence ahead of administrative separations for other reasons. Relief denied.

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 violations of Articles 92 and 134 of the UCMJ in addition to a counseling for conspiring to make a false official statement and a summary court-martial conviction for violating Article 112a of the UCMJ.  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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Navy 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.  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