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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD05-00450

Applicant’s Request

The application for discharge review was received on 20050105.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050831.  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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of separation in lieu of trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“To who it may concern:

Hello my name is E_ J. K_ (Applicant) I’m writing to you, in hopes to upgrade my discharge.  In the past, I may have made some (bad, thoughtless, careless) decisions etc.  What I’m trying to say is, these actions caused me to lose my military career.  I’m 30 yrs old now, and how people say (hind-sight - 20/20) is true, Because if I knew then what I have learned Now, things would be different a lot different.  I guess you see from the time I was discharged until now; a lot of time has passed.  I’ve bee working supporting a family and now I want to rectify all my mistakes.  I will and can take any course of action you see fit to upgrade my discharge, I think if you review my service records minus my incident which cause my to be dismissed, I served Honorably.  Also I hope that someone actually reads this appeal, if there was any way I could get in contact (with your permission of course) judge magistrate to reconsider and allow me to re-enlist. I am truly a changed man, and would love to show you by serving my country proudly once again.  My home to town is Jackson, Mississippi (telephone number deleted) (email address deleted) If you decided to let me re-enlist, I would take any drug-rehab course to show that I am clean and sober, and will start at the bottom level and show you by working hard and dedication to God, myself and my country.  We all make mistakes in life I just pray that you didn’t and don’t think my actions were so bad, that it warrants a death sentence in a career (with the military).  I received an (OTR) discharge but want it to be upgraded to (Honorable, or at least case General).  I thank who ever to the time read my appeal, and apologize for my grammar.  There is a lot more I could say, but the most important thing is that I have changed my life and put all of the none-sense in the past, and hope you can do the same.
Sincerely, E_ J. K_ III (Applicant)

Dear Reader * I apologize for small writing) Please Read”

Documentation

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

Applicant’s DD Form 214
Applicant’s résume
Character Reference ltr from H_ W_, dtd January 27, 2005 [unsigned]
Character Reference ltr from C_ T_, dtd January 27, 2005 [unsigned]
Character Reference ltr from D_ B_, dtd January 27, 2005 [unsigned]

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19970312 - 19970324		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19970325		Date of Discharge:  19980406

Length of Service (years, months, days):

Active:    01  00  12
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  23

Years Contracted:  4

Education Level:  12				AFQT:  33

Highest Rank:  PFC				MOS:  3051

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (2)				Conduct:  4.6 (2)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized (as stated on the DD Form 214):  Rifle Expert Badge

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

970312:	Pre-service waiver for felony offense(s) as a minor granted.

970305:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

970921:	Applicant joined 7th Motor Transport Battalion, 1st Force Service Support Group, Camp Pendleton, CA for duty. 

980402:	Battalion NJP for violation of UCMJ, Article 112a: In that SNM, did, aboard Camp Pendleton, on 980122, wrongfully use a controlled substance, to wit: marijuana.
	Award:  Forfeiture of $500 per month for 2 months, restriction for 45 days, reduction to E-1.  Not appealed.

980406:	Applicant discharged under other than honorable conditions in lieu of trial by court-martial, authority MARCORSEPMAN Par. 6419.

Service Record Book did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980406 by reason of separation in lieu of trial by court-martial (A) with a service characterization of under other than honorable conditions.  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 (B and C).

To permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Applicant’s record is missing the discharge package, and the Board presumed regularity in the conduct of governmental affairs (D).  When this occurs, the Applicant bears the burden of overcoming this presumption of regularity by presenting any substantial and credible evidence.  The Applicant did not provide any documentary evidence to challenge the propriety or equity of the discharge.  Therefore, relief on this basis is not granted.  

The Applicant requests a service characterization upgrade because his overall service was honorable, notwithstanding the incident that precipitated his discharge.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  There is irrefutable evidence that the Applicant’s conduct during his time in the Marine Corps was not honorable.  Indeed, the Applicant’s records contain nonjudicial punishment proceedings on 19980402 for violation of UCMJ Article 112a Wrongful use of controlled substance (marijuana).  Also, given the Applicant’s certified understanding of Marine Corps policy concerning illegal use of drugs on 19970312, this violation falls well below that required for an honorable characterization of service.  An upgrade would be inappropriate, and relief is denied.

The Board recognizes the Applicant’s claim of being clean and sober; working to support his family; and having changed his life.  While 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 Marine Corps, the Board is authorized to consider 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.  The Applicant provided three character references for consideration.  The Applicant is advised that his efforts need to be more encompassing to include proof of verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle, and certification of non-involvement with civil authorities.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  And so, no relief is granted on this basis.

The Applicant desires to reenlist to show his dedication to God, self, and country.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Consequently, the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Relief on this basis is 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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 
18 Aug 95 until 31 August 2001.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  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