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

ex-Pvt, USMC
Docket No. MD05-00102

Applicant’s Request

The application for discharge review was received on 20041020.  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.  “I request an upgrade for the reason that I would like to apply to become a Texas State Trooper which requires an honorable Discharge.  My Justification is that its almost a year without any violations with the Law.  I also believe due to my participation in the war against Iraq, which I was in the front lines, I deserve an honorable discharge.  I have Realized the mistake I committed to received this OTH, But I have learned a great deal from that mistake.  But its like they say no ones perfect and everybody makes mistakes and you learn form them.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None	
	Inactive: USMCR (J)		010629 - 020127	COG

Period of Service Under Review:

Date of Enlistment:  020128		Date of Discharge:  031028

Length of Service (years, months, days):

	Active:    01  09  01
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  48

Highest Rank:  PFC		MOS:  1833 (Assault Amphibious Vehicle 
          Crewman)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (6)			Conduct:  3.7 (6)

Military Decorations:  CAR

Unit/Campaign/Service Awards:  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:

010622:	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.

021231:	NAVDRUGLAB [JAX] reported Applicant’s urine sample, received 021217, tested positive for MDMA (Ecstasy).

030108:	NJP for violation of UCMJ, Article 112a:  … wrongful use of a controlled substance …
Awd red to Pvt/E-1, forf of $575.00 per month for 2 months, and 60 days restriction and extra duties.  Rest for 60 days susp for 6 mos.  Not appealed.

031002:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the Applicant’s “wrongful use of a controlled substance (MDMA).

031002:	Applicant advised of rights and having consulted 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.

031006:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the Applicant’s “wrongful use of a controlled substance (MDMA).

031016:	SJA review determined the case sufficient in law and fact.

031019:	GCMCA [Commanding General, 2d Marine Division] 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 20031028 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board discovered no impropriety or inequity and considers his discharge proper and equitable.  This issue does not serve as a foundation upon which the Board can grant relief. 

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 illegal drug use.  The Applicant was granted a waiver for his prior service drug use in order for him to enlist in the Marine Corps.  He affirmed his understanding of the Marine Corps policy on illegal drug use and the consequences that could result for in service illegal substance abuse.  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.  Additionally, 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 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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   The Applicant did not provided any verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  A discharge upgrade to honorable would be inappropriate.  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