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

 ex-PVT, USMC
Docket No. MD05-00270

Applicant’s Request

The application for discharge review was received on 20041115.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests a personal appearance discharge review before the Board in the Washington National Capital Region.  The Applicant listed Disabled American Veterans as his representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050316.  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 of my current discharge by reason of equitable relief.  My desire is to improve the potential for my children & myself.  The circumstances surrounding my current discharge came from a moment of weakness and a lapse in judgement and given the same circumstances it would not happen a second time.”

Issues submitted by Applicant’s representative Disabled American Veterans:

2.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable discharge to a General, Under Honorable Conditions.

The FSM served on active service from December 19, 1998 to March 4, 2002 at which time he was discharged due to reasons of Misconduct. 

The FSM ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

Under the premises of equitable relief, we believe the Board can change the character of discharge to a General, Under Honorable Conditions. As noted by the Applicant, the circumstances surrounding the current discharge came from a moment of weakness and a lapse in judgment and given the same circumstances it would not happen again, as he has a desire to improve the potential quality of life for his children through a change of the current discharge.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.”

Documentation

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

Applicant’s DD Form 214  (Member 4)
Letter from Disabled American Veterans National Service Office, K_ L. G_, National Service Officer, dated November 2, 2004

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  981119		Date of Discharge:  020304

Length of Service (years, months, days):

	Active:    03  03  16  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  27

Highest Rank:  LCpl			MOS:  3112

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (Unknown)			Conduct:  3.9 (Unknown)

Military Decorations:  None

Unit/Campaign/Service Awards:  RMB

Days of Unauthorized Absence:  6

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:

980827:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

991227:	Counseled for deficiencies in performance and conduct.  [Improper conduct, specifically, my family disturbances in base housing.]  Necessary corrective actions explained, sources of assistance provided.

000405:	NJP for violation of UCMJ, Article 91:
Specification 1:  Insubordinate conduct toward a Noncommissioned Officer while at B Co, HqBn, at 1530 on 21 March 00.
Awarded restriction and extra duties for 7 days.  Not appealed.

010305:	IHCA.

010312:	From IHCA, to duty.

010919:	NAVDRUGLAB San Diego, CA, reported Applicant’s urine sample, received 010910, tested positive for THC.

010921:	U. S. Marine Corps Criminal Investigation Division report.

011015:	SACC screening results and treatment evaluation:  The member was cooperative during the interview.  He related that he used an unknown quantity of the substance at a party thinking it was tobacco.  His disclosures of alcohol and other drug use appeared reliable and he does not appear to meet reference (b) criteria for alcohol or other drug dependency or abuse.
	Recommendations: (1) Be assessed for drug abuse by a medical officer, (2) Attend MDAC at next convenient class convening date, (3) Be referred to Mental Health Center for evaluation of reported S/Sx of depression and anxiety, (4) Process for ADSEP due to drug use.
	Amenability to recommendations:  Good.
	Potential for further productive service with recommended program:  Poor.

011105:	Counseled for deficiencies in performance and conduct.  Illegal drug involvement, THC usage identified through urinalysis confirmed by NAVDRUGLAB San Diego msg 191503Z Sep 01.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

011127:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 112a:
	Specification: In that Lance Corporal A_ C. S_, U. S. Marine Corps, while on active duty, did, at or near Twentynine Palms, California, between about 24 August 2001 through about 6 September 2001, wrongfully use of marijuana.
	Finding: to Charge I and the specification thereunder, guilty.
	Sentence: Forfeiture of $693.00 of pay for 1 month, reduced to E-1 and 30 days of confinement.
	CA action 011127:  Sentence approved and ordered executed.

020116:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020117:	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.

020125:	Commanding Officer, Headquarters Battalion recommended to Commanding Officer, Combat Service Support Group One that Private S_ (Applicant) be separate under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was wrongful use of marijuana resulting in being referred to summary court-martial.  

020206:	Commanding Officer, Combat Service Support Group One concurs with the recommendation that Private S_ (Applicant) be separated with an under other than honorable characterization of discharge by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim):  I do not believe that Private S_ (Applicant) possesses the potential for further service.  His continued presence is detrimental to maintaining good order and discipline in the command.  With the concurrence of the Commanding Officer, Headquarters Battalion, I recommend that Private S_ (Applicant) be separated by reason of misconduct, specifically drug abuse, and that the characterization of service be under other than honorable conditions.

020211:	Counseled for deficiencies in performance and conduct.  Illegal drug involvement, THC usage identified through urinalysis confirmed by NAVDRUGLAB San Diego msg 191503Z Sep 01.  Necessary corrective actions explained, sources of assistance provided.

020222:	SJA review determined the case sufficient in law and fact.

020222:	Commander, 1st Force Service Support Group, advised the Commandant of the Marine Corps (MMSB) that the Applicant will be discharged 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 20020304 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).

Issues 1 and 2.  The Applicant received nonjudicial punishment for insubordinate conduct and a summary court-martial for illegal drug use.  Drug abuse warranted processing for separation.  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.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety is evident during the Applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, hardship, or good conduct in civilian life, subsequent to leaving the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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