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

FOR OFFICIAL USE ONLY

ex-Pvt, USMCR
Docket No. MD05-00356

Applicant’s Request

The application for discharge review was received on 20041215.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811.  After a thorough review of the available 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:

“was wrongfully convicted”

Applicant’s Remarks: 

“This application was previously submitted on 2003/Feb/23 But was never answered”

Documentation

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

Marine Corps detachment cover sheet, dated September 22, 2001
Appointment slip, dated November 20, 2001
DA Form 3349, dated October 30, 2001
Meritorious Mast certificate dated September 21, 2001
Delayed Entry Program certificate, dated May 8, 2001
School of Infantry Certificate, dated September 21, 2001
Diploma for food service specialist course, dated November 28, 2001
Lance Corporal Promotion Warrant, dated July 1, 2002 (unsigned)
Three pages from Applicant’s service record, dated September 27, 2003

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:  010508		Date of Discharge:  031209

Length of Service (years, months, days):

	Active:    00  06  23
	Inactive:  02  00  07

Age at Entry:  21			Years Contracted:  8

Education Level:  12	(GED)		AFQT:  52

Highest Rank:  LCpl			MOS:  3381

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (2)			Conduct: 4.3 (2)

Military Decorations:  Rifle Sharpshooter Badge

Unit/Campaign/Service Awards:  None

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:

010503:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

010508:	CG-Level waiver approved.

010522:	8th MCD-Level waiver approved.

010522:	Applicant reported for initial tour of active duty for training.

011129:	Applicant released from initial tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.

020531:	Applicant reported for active duty training.

020616:	Applicant released from active duty training.

020923:	Applicant convicted of possession of Oxycodone and Alprazolam, both controlled substances this date.  [Extracted from notification dtd 030927, provided by Applicant]

undated:	Applicant unlawfully possessed a military police badge and falsely represented himself as a military police officer.  [Extracted from notification dtd 030927, provided by Applicant]

030927:	Applicant notified of intended recommendation for under other than honorable conditions discharge by reason of misconduct due to drug abuse and commission of a serious offense.  The least favorable characterization of service which you may receive is Other Than Honorable.

031209:	Applicant discharged.  [Determined through phone correspondence between NDRB executive secretary and MMSB]

050722:	Service Record Branch, Quantico states date of discharge as December 9, 2003, unable to give reason for discharge.  [Determined through phone correspondence between NDRB executive secretary and MMSB]

Discharge record not contained in service record book

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031209 under other than honorable conditions for misconduct due to drug abuse (A and B).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).    

The Applicant contends that he was “wrongfully convicted.”  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the Applicant was wrongfully convicted or that his discharge was improper or inequitable.   The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  However, even if the Applicant did provide any evidence in relation to a court-martial, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  Relief denied.  

There is credible evidence in the record that the Applicant was convicted of possession of illegal drugs.  Your illegal possession of controlled substances is considered “wrongful use of a controlled substance” punishable under the UCMJ, Article 112a.  Mandatory processing for separation is required for Marines who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  In addition to the Applicant Article 112a infraction, there is evidence in the record that the Applicant unlawfully possessed a military police badge and falsely represented himself as a military police officer, a serious offense.  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 remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 134, impersonation.

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.

E.  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.

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