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

ex-LCpl, USMC
Docket No. MD05-00106

Applicant’s Request

The application for discharge review was received on 20041015.  The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 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.  “To Whom It May Concern:

•	April 17, 1997- Infantry training Machine Gunner 0331 completed

•	September 1, 1997 - Promoted to Lance Corporal

•	July 17, 1998- Non-Lethal weapons course completed

•	March 1,1999 - Promoted to Corporal

•	April 2, 1999 - Third place of the Second Marine Division CG Cup Run

•	May 20, 1999 - Certificate of Achievement for superior physical performance 295pts.  Average was 280 while in the fleet.

•	June 1999 - Passed Corporals leadership course class 12-99

•	July 25, 1999 - Accepted to Marine security guard battalion

•	August 2, 1999 - Recommendation for termination from Marine security guard

•	October 6, 1999 - Certificate of Good Conduct

•	November 19, 1999 - Non Lethal Weapons Course completed

In 1997, I helped recruit D_ T_ and J_ G_ from Albuquerque, NM.  Which are currently involved in the Marine Corp.  By making a mistake my punishment was that my rank reduced, charged a thousand dollar fine, and a 45/45 restriction to the barracks and duties.  After this happened I only had 8 months left in the Marine Corp. and my EAS was up on October 6, 2000.  I was sent to Headquarters Co. of 2nd Battalion 2nd Marine Division.  They kept me active up to October 5, 2000 and gave me the DD-2l4, so that I would not get on Honorable discharge.  At this time I was only 45 points away for making E-4, once again.  If I, M_ V_ W_ (Applicant) was not intended to receive a honorable discharge, than why weren’t the actions taken upon accurately.  Instead 8 months after the mistake I was discharged a day before my EAS.  My main concern is that my discharge was unfair and would like to receive a general or honorable discharge.

Thank you,
M_ V_ W_ (Applicant)”

Documentation

The Applicant did not provide the Board with any supporting documentation for consideration during deliberation of his case.

PART II - SUMMARY OF SERVICE

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

	Active:   			None			HON
	Inactive: USMCR (J)		960522 - 961006	COG

Period of Service Under Review:

Date of Enlistment:  961007		Date of Discharge:  001005

Length of Service (years, months, days):

	Active:    04  00  00
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (18 mos ext canceled 
  MCO1040.31_)

Education Level:  12			AFQT:  33

Highest Rank:  Cpl			MOS:  0331 (Machine Gunner)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (9)			Conduct:  4.3 (9)

Military Decorations:  GCM

Unit/Campaign/Service Awards:  SSDR (2)

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:

960521:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

990423:	Counseled for deficiencies in performance and conduct.  [Inability to successfully complete the Corporal leadership course, due to … demonstrated lack of effort.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000124:	NAVDRUGLAB [Jacksonville, FL] reported Applicant’s urine sample, received 000112, tested positive for THC.

000131:	NJP for violation of UCMJ, Article 112a:  … wrongfully used a controlled substance …
Awd red to LCpl/E-3, forf of $500.00 per month for 2 months, and 45 days restriction and extra duties.  Not appealed.

000131:	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) “incident of illegal drug use as identified in NAVDRUGLAB JACKSONVILLE FL msg 241830Z Jan 00.”  

000131:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000209:	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 “incident of illegal drug use as identified in NAVDRUGLAB JACKSONVILLE FL msg 241830Z Jan 00.”  

000419:	Subsequent, to the Applicant’s rights advisory he consulted with counsel certified under UCMJ Article 27B prior to appearing before an Administrative Discharge Board.

000604:	SACO/DACO eval/comment determined the Applicant’s drug abuse was an isolated incident and recommended he be processed for Administrative Separation.

000918:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

000921:	Administrative Discharge Board recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  

000922:	SJA review determined the case sufficient in law and fact.

000922:	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 20001005 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:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  The record does not support the Applicant’s contention his discharge was unfair.  The Applicant’s service record is marred by the award of nonjudicial punishment (NJP) for wrongful use of a controlled substance, substantiating his misconduct. The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, demonstrating he was unsuitable for further service.  A discharge upgrade 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.   The Applicant did not provided any documentation for the Board to consider during the deliberation of his case. 
 
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