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

 ex-Pvt, USMC
Docket No. MD05-00480

Applicant’s Request

The application for discharge review was received on 20050126.  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 designated the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050713.  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

No issues were submitted by the Applicant.

Issues submitted by Applicant’s representative (Veterans of Foreign Wars):

1.  “Because the Applicant presents no issues on which to base an argument on his behalf we ask that after your careful review of the record that you change the discharge as appropriate.”

Documentation

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

None were submitted

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		010306 - 010318	COG

Period of Service Under Review:

Date of Enlistment:  010319		Date of Discharge:  040416

Length of Service (years, months, days):

	Active:    03  00  28
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  36

Highest Rank:  LCpl			MOS:  3531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, RMB

Days of Unauthorized Absence:  None

*No marks found in service record.

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:

010305:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

020813:	Counseled for deficiencies in performance and conduct.  [Violation of Article 86.  Specifically, you were UA for your platoon formation on 020813.  You were to report to motor pool at 0700 and did not show up until 0735.  You also failed to report to your appointed place of duty on 020730 for which you were formally counseled.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020827:	Counseled for deficiencies in performance and conduct.  [Failure to obey orders or regulations.  On or about 020709 SNM failed to appear for traffic court.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021101:	Counseled for deficiencies in performance and conduct.  [Violation of Article 86.  Specifically, you were UA for your 0600 platoon formation on 020906.  You were also UA on 021015.]  Necessary corrective actions explained, sources of assistance provided.

021108:	NJP for violation of UCMJ, Article 86:
Specification: Absent from appointed place of duty on 0700-1310, 021101.
Awarded forfeiture of $306.00 per month for 1 month, correctional custody for 7 days.  Not appealed.

030203:	Counseled for deficiencies in performance and conduct.  [Pattern of misconduct.  Specifically, you lack those qualities associated with being a Marine.  You lack specific traits in the areas of judgment and punctuality.  Your currently have 2 prior PG-11 entries and 1 NJP all reflecting your failure to be at your appointed place of duty.  You are currently pending a 2nd NJP for unauthorized absence.  Additionally you are pending a civilian case involving alleged assault with a weapon.  Repeated violations of the UCMJ will not be tolerated.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030214	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Absent from appointed place of duty on 1200-1300, 030115.
Specification 2: Absent from appointed place of duty on 0700-1100, 030203.
Awarded forfeiture of $645.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Forfeiture suspended for 6 months.  Not appealed.

030228:	Counseled for deficiencies in performance and conduct.  [Pattern of misconduct.  You lack in the areas of judgment and integrity.  You have currently had 3 pg-11’s and 2 nonjudicial punishments.  One on 021109 and the last on 030214.  All the charges are related to UA, or failure to obey orders because of your lack of judgment.  Behavior of this kind will not be tolerated.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

031124:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 031119, tested positive for THC.

031212:	NJP for violation of UCMJ, Article 112a:
Specification: Wrongfully use a controlled substance on 031117, to wit: marijuana.
Awarded forfeiture of $645.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-2.  Forfeiture suspended for 6 months.  Not appealed.

031212:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 031208, tested positive for THC.

040107:	Applicant refused treatment for substance abuse.

040113:	Substance Abuse Rehabilitation Program:  Applicant refused any and all services and desired not to answer any questions.  Recommend process for administrative separation for treatment failure.

040218	Applicant signed a pretrial agreement to enter a voluntary plea of guilty provided the convening authority agrees to withdraw the charge and specification pending special court-martial.

040223:	Pretrial agreement approved.

040309:	NJP for violation of UCMJ, Article 86:
Specification: Fail to go at prescribed time to appointed place of duty on 040106.
Violation of UCMJ, Article 112a:
Specification: Wrongfully use a controlled substance on 031205, to wit: marijuana.
Awarded forfeiture of $596.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-1.  Forfeiture of 1 month suspended for 6 months.  Not appealed.

040326:	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.

040329:	Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct and drug abuse.  The factual basis for this recommendation was your pattern of misconduct.  The least favorable characterization of service that you may receive is other than honorable.

040329:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse.  

040406:	SJA review determined the case sufficient in law and fact.

040406:	Commanding General, II Marine Expeditionary Force 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 20040416 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.  An under other than honorable conditions discharge 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.  The Applicant’s service was marred by four retention warnings, two positive urinalyses for THC, four nonjudicial punishment proceedings for violations of Articles 86 and 112a of the UCMJ and two refusals for substance abuse treatment.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 Naval service.  The NDRB 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle, to include certification of rehabilitation, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  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.  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