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

ex-Pvt, USMC
Docket No. MD05-00148

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 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 just want to say that I never wanted out of the military but I guess I made a mistake and they had no choice.  I wish I could go back in but because I have that code I can’t.  I should’ve never been kicked out because I was done wrong and things went wrong.  Paperwork was lost things didn’t get passed up the chain command and when I did go up the chain I got into trouble and was called a liar by my GySgt when it comes back down the ladder.  Since being separated I have been working staying out of trouble and being a family man.  I ask you to give me an upgrade on my discharge for it has been 5 yrs and I have been out of trouble.  Thank you Semper FI.”

Documentation

The Applicant did not submit any additional documentation for the Board to consider during the deliberation of his case.

PART II - SUMMARY OF SERVICE

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

	Active:   			None			HON
	Inactive: USMCR (J)		990212 - 990222	COG

Period of Service Under Review:

Date of Enlistment:  990223		Date of Discharge:  011001

Length of Service (years, months, days):

	Active:    02  06  14 (*Accounts for lost time.)
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  14			AFQT:  35

Highest Rank:  LCpl			MOS:  6672 (Aviation Supply Clerk)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (8)			Conduct:  3.7 (8)

Military Decorations:  MeritM

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  (25) 990815 –990909 
*The record does not show the Applicant’s time served in correction custody awarded at NJP.

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:

990212:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

990815:	Applicant to UA (AWOL) as of 1801.

990909:	Applicant from UA (AWOL) after surrendering at 1100.

990916:	NJP for violation of UCMJ, Article 86:  UA (AWOL) … from …1801, 15 Aug 99 to 1100, 9 Sep 99.
Red to Pvt/E-1, forf of $400.00 per month for 2 months, and 30 days correctional custody.  Red, and forf of $300.00 per month for 2 months susp for 6 mos. Not appealed.

000918:	NAVDRUGLAB [San Diego, CA] reported Applicant’s urine sample, received 000831, tested positive for THC].

001023:	Counseled for deficiencies in performance and conduct.  [Insubordinate conduct toward a Non-commissioned Officer.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010201:	Technical Certification of Results:  The technical and administrative data associated with the testing of the Applicant’s urine sample was reviewed and found to be technically and administratively complete and accurate.  Specimen was confirmed via GC/MS to be positive for THC.

010611:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a:
	Specification:  … wrongfully use Marijuana (THC), a controlled substance.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Red to Pvt/E-1, and 30 days confinement.
	CA action 000000:  Sentence approved and ordered executed except for that portion of the punishment adjudging 30 days confinement which is suspended for 6 months.
	
010706:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis for THC.

010706:	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.

010813:	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 Applicants positive urinalysis for THC. 

010914:	SJA review determined the case sufficient in law and fact.

010918:	GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 20011001 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 discovered no impropriety or inequity in the Applicant’s 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 United States Marine.  The Applicant’s record is devoid of any evidence that he 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 unauthorized absence and a Summary court-Martial for wrongful use of a controlled substance, which substantiated his misconduct.  The Applicant’s summary of service clearly reflects the Applicant’s 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.   The Applicant did not provide the Board any to consider in the deliberation of his case.  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