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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD05-00517

Applicant’s Request

The application for discharge review was received on 20050131.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant designated the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051221.  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 by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I am a combat veteran from Operation Iraqi Freedom who risked his life honorably for his country.  During my time in the marine corps I was a well above average Marine who received high proficiency & conduct evaluations as well as meritorious boards.”

Additional issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars):

“Equity in service:
The Applicant has more than two years of service with exemplary conduct.  He is a combat veteran of Iraqi Freedom where he was awarded the Combat Action Ribbon.”

Mitigating factors: The veteran contends that he suffers from Post Traumatic Stress Disorder (PTSD) due to his experiences in combat.

Post service:
The veteran contends that he has maintained a clean record since discharged.

Applicant’s Remarks:  (Taken from the DD Form 293.)

“The bottom line is I am a combat vet who willingly risked his life for the saftey & beliefs of this country.
I made a mistake and used drugs while in service, I made a big mistake, people make mistakes.
Prior to the marine corp I have had a clean record and since discharge I have had a clean record.”

Documentation

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

Applicant’s ltr, dtd January 20, 2005
Applicant’s statement in support of claim, dtd October 12, 2004 (2 pages)
Applicant’s DD Form 214 (Member 1 and 4)
Summary of care from Naval Hospital, Camp Pendleton, CA, undtd
Lance Corporal Promotion Warrant, dtd July 1, 2002
Presidential Unit citation, dtd November 3, 2003
Certificate of participation in combat operations, dtd August 1, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20010820 - 2001029	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20011030		Date of Discharge:  20040122

Length of Service (years, months, days):

Active:    02  02  23
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  Unknown*

Age at Entry:  27

Years Contracted:  4

Education Level:  13				AFQT:  65

Highest Rank:  LCpl				MOS:  2131

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.5 (1)				Conduct:  2.5 (1)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Combat Action Ribbon, Sea Service Deployment Ribbon, Presidential Unit Citation, Rifle Marksman Badge, National Defense Service Medal

*Only the Applicants date to confinement is known.

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:

010810:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

010820:	Pre-service waiver for marijuana usage and other drug usage granted.

031031:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 87:
	Specification: In that Lance Corporal S_ J. M_(Applicant), U.S. Marine Corps, on active duty, did at Pearl Hawaii, on or abt 25 June 2003, through neglect miss the movement of USS ANCHORAGE, 1st Battalion, 11th Marines, 1st Marine Division with which he was required in the course of duty to move.
	Charge II: violation of the UCMJ, Article 112a: Wrongful use of a controlled substance.
	Specification: In that Lance Corporal S_ J. M_(Applicant), U.S. Marine Corps, on active duty, did at unknown location on or abt 25 June 2003, wrongfully use cocaine.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence: Forfeiture of $709.00 pay per month for 1 month, confinement for 30 days, reduced to E-1.
	CA action 031031:  Sentence approved and ordered executed.  The sentence for confinement is deferred until 031104.

031104:	Applicant to confinement.

040122:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, authority:  MARCORSEPMAN 6210.5.

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 20040122 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions.  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).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant contends he is a combat veteran and that he was an “above average Marine” with high marks.  The Applicant’s representative contends that the Applicant served two years with “exemplary conduct.”  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service was marred by a summary court-martial conviction for violations of Articles 87 and 112a of the UCMJ.  The Applicant’s violations of Articles 87 and 112a are considered serious offenses and merited the Applicant’s discharge.  An under other than honorable conditions character of service 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 serious offenses are considered a violation of the special consideration granted the Applicant when waivers were issued for his enlistment.  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 Applicant contends through his representative that he suffers from post-traumatic stress disorder and that this condition should mitigate his misconduct.  While he may feel that his medical condition was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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 and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  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 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.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 
01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.

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 87, missing movement or Article 112a, wrongful use of a controlled substance.  

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, Para 211, Regularity of Government Affairs.

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