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

ex-LCpl, USMC
Docket No. MD05-00232

Applicant’s Request

The application for discharge review was received on 20041122.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  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: GENERAL (UNDER 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:

“Issue 1:    My discharge was inequitable because it was based on “misconduct due to drug abuse” which was not supported by the diagnosis of the Substance Abuse Counseling Center professionals or the Command Officials conducting the investigation into this matter.  Nor is it consaistent with the events as they actually happened.  Please refer to attached supporting documents.”

Documentation

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

Applicant’s letter to the Board, dtd November 5, 2004
Character reference, undated & unsigned
Character reference, undated
Counselor Assessment and Recommendation, dtd 21 Feb 03 (2 paces)
Applicant’s supplemental letter to the Baord, dtd November 5, 2004
Medication profile
Urinalysis message, dtd 022239Z Dec 02 (2 pages)
Acknowledgement of misconduct, dtd 27 Jan 03
Character reference, dtd 28 Feb 03
Character reference, dtd 03 Mar 03
Character reference, undated & unsigned (Signed copy recommends discharge.)
Proficiency/Conduct Marks
Applicant’s Chronological history
Applicant’s DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

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

	Active:   None	
	Inactive: USMCR (J)		990115 - 990124	COG

Period of Service Under Review:

Date of Enlistment:  990125		Date of Discharge:  030702

Length of Service (years, months, days):

	Active:    04  05  08		Inactive:  None

Age at Entry:  17 (Parental Consent)	Years Contracted:  5 

Education Level:  12			AFQT:  85

Highest Rank:  Cpl			MOS:  6124 (T-400/T-700 Helicopter Power Plants 
Mechanic)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (11)			Conduct:  4.0 (11)

Military Decorations:  CertApp, MeritM, LtrApp

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MARCORSEPMAN 6210.5.

Chronological Listing of Significant Service Events:

990115:	Initial enlistment contract documents admission of pre-service marijuana experimentation and other drugs.  Enlistment waiver was granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

001107:	Counseled for deficiencies in performance and conduct.  [Failure to pass Marine Corps Physical Fitness Test (PFT).]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010321:	Counseled for deficiencies in performance and conduct.  [Operating a privately owned vehicle after receiving a citation from PMO on 010120 at 1900 for not having in your possession or proof of having a valid drivers license.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010321:	Counseled for deficiencies in performance and conduct.  [Making a verbal statement of drug use while on leave during the period of 2 January to 16 December 2001.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010829:	NJP for violation of UCMJ, Article 92: Failure to obey an order or regulation.
Awd red to PFC/E-2, forf of $650.00 per month for 1 month,  and 30 days CCU.  Red and forf susp for 60 days.  Not appealed.

010928:	Counseled for deficiencies in performance and conduct.  [Not recommended for promotion to Cpl for the month of Oct because of recent NJP.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020319:	NJP for violation of UCMJ, Article 113 (2 specs):
Specification 1:  … found asleep while on post on 020219 at 0237 …
Specification 2:  and again at 0336.
Awd red to LCpl/E-3.  Not appealed.

020425:	Counseled for deficiencies in performance and conduct.  [Putting yourself in a UA status by leaving barracks 4211.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021202:	NAVDRUGLAB [Jacksonville, Fl] reported Applicant’s urine sample, received 021125, tested positive for codeine.

030127:	Applicant submits a letter acknowledging his misconduct due to drug use to the Commanding Officer of Marine Aircraft Group 29.

030221:	SACO/DACO eval/comment:  Diagnostic impression was none.  Recommendation was to return to duty without further counseling and submit separation package per MCO.

030224:	VA rehabilitative treatment offer.

030306:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by his “in-service drug involvement as evidenced by (the Applicant’s) positive urinalysis for codeine.”

030306:	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.

030306:	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 “in-service drug involvement as evidenced by (the Applicant’s) positive urinalysis for codeine.” 

030312:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement, codeine.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030617:	SJA review determined the case sufficient in law and fact.

030617:	GCMCA [Commanding General, 2d 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 separated on 20030702 with a general (under honorable conditions) discharge 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 Applicant contends his discharge “was based solely on an isolated incident in 47 months of honorable service.”  Even though the civilian world treats some offenses with leniency because they are a first time incident on an otherwise clear record, the military does not view such offenses as minor infractions.  The Applicant’s drug abuse warranted processing for separation, normally under other than honorable conditions.  Additionally, the Applicant’s service record is marred by several negative page eleven counseling entries and the awarding of nonjudicial punishment (NJP) on two separate occasions fro failure to obey orders and for sleeping on post.  The Applicant’s admitted drug use and his positive urinalysis substantiated the misconduct for which he was discharged.  A service characterization of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure of that expected of a member of the United States Marine Corps.  It must be noted most Marines serve honorably; thereby, earning their honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher characterization than is due.  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. An upgrade from general (under honorable conditions) 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.  However, 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 verifiable 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