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

 ex-LCpl, USMC
Docket No. MD05-00518

Applicant’s Request

The application for discharge review was received on 20050131.  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 20050601.  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 Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I  J_ E. T_ (Applicant) Take full responsibility for my actions on May 25, 2001 which resulted in a felony in civilian court.  Due to that felony charge I, I was discharged by the Marine Corps 8 months later.  The mistake I made cost me every thing I was proud of at the time.  I did not want out of the Marine Corp and prior to my discharge I served approximate 2 ½ years without so much as an NJP or page 11.  I was discharged as a lance corporal but I had made the made the rank of corporal on time, something I worked very hard attain.  My felony of charge in the civilian court has been dropped because I finished all the requirements the state set for me and I have served my probation.  due to the fact that it was my first offense they granted my felony be dropped.  It’s been a few years since my discharge, I am now married and am about to attend school in late January witch is the reason for this request.  I have talked with a representative at the Montgomery GI bill offices and was informed if my discharge was up graded to Honorable I would be eligible for all 36 months of my GI bill benefits.

I send this application for discharge upgrade in hopes that the members of the board will see fit that I be granted an Honorable discharge.  Thank you for your time.”

J_ E. T_ (Applicants’ signature)

Documentation

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

Notice of Completion Certificate, Driving-Under-the-Influence Program dtd May 20, 	2002 
Central Coast Headway, Inc, evaluation, E_ M_, Therapist, Executive Director, dated 	October 11, 2002
Superior Court of the State Of California, County of Ventura, Minute Order, case 	number 2001019764 M A dtd September 19, 2003 (7 pages)
Letter of recommendation from E_ M. S_, (Grandmother), dated February 17, 2005
List of Family and Friends with contact numbers
Applicant’s DD Form 214 (member 4)
Applicant’s DD Form 214 (member 1)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		990223 - 990824	COG

Period of Service Under Review:

Date of Enlistment:  990825		Date of Discharge:  020131

Length of Service (years, months, days):

	Active:    02  05  07
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  57

Highest Rank:  Cpl			MOS:  3533

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (8)			Conduct:  4.5 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, REB

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

990218:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

010823:	Summary of Action from Substance Abuse Control Officer, 1st Transportation Support Battalion:
	(1)  May 24, 2001, after being pulled over by the Camarillo, California Sheriff’s Department, Cpl T_ (Applicant) was found to be in the possession of a controlled substance (THC, ecstasy) and having the blood alcohol level of .08 percent.
	(2)  June 6, 2001, Cpl T_ (Applicant) plead guilty to the charges of possession of a controlled substance and driving under the influence of alcohol or drugs.
	(3)  June 9, 2001, Cpl T_ (Applicant)’s Company Commander was notified of the incident as well as his court appearance and judgment.
	(4)  August 20, 2001, Captain B. L. G_ screened Cpl T_ (Applicant).  Cpl T_ (Applicant) refused to be evaluated by a medical officer.  Recommendation:  He attend the Marine Drug Awareness Course, and should be processed for administrative separation due to his possession of THC and ecstasy per the references.

010906:	CSACC advised the CO, 1st Transportation Battalion that the Applicant refused to be evaluated by the Medical Officer.  Recommended that the Applicant attend Marine Drug Awareness Course (MDAC).

011023:	Applicant notified that he was eligible but not recommended for promotion to Sgt for the months of Nov-Dec because of involvement with civil authorities.  

011218:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service is under other than honorable conditions by reason of a commission of a serious offense.  The factual basis for this recommendation was the incident on or about 06April 2001 resulting in the Applicant’s arrest for violation of CA Health & Safety Code 11377 (a), possession of a controlled substance and CA Vehicle Code 23222 (A), driving under the influence of alcohol or drugs.  The Applicant’s violations demonstrate a propensity or intent to engage in further acts of misconduct.

011219:	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.

011220:	Commanding Officer, 1st Transportation Support Battalion, recommended discharge under other than honorable conditions by reason of commission of a serious offense.    Commanding Officer’s comments: (verbatim):  On April 26, 2001, Corporal T_ (Applicant) was arrested for a felony DUI and possession of a controlled substance.  The Superior Court of California, County of Ventura, found him guilty on 4 June 2001.  His charges are a violation of California Vehicle Code 23222 (a): driving under the influence of alcohol or drugs.  Corporal T_ (Applicant) was awarded 90 days license restriction, $1430.00 in fines, 48 hours confinement, deferred entry of judgment for 24 months, and 36 months probation.

020104:	SJA review determined the case sufficient in law and fact.

020104:	Commander, 1st Force Service Support Group, advised the Commandant of the Marine Corps (MMSB), of the Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020131 under other than honorable conditions for misconduct due to the commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.  The Applicant was arrested by civil authorities and plead guilty to charges of driving under the influence of alcohol or drugs and possession of a controlled substance.  According to the UCMJ, violation of Article 111, drunken driving, and violation of Article 112a, possession of controlled substances, are considered serious offenses.  Further, mandatory processing for separation is required for Marines who possess controlled substances.  The statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  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.  The Applicant was provided the opportunity to present his case to an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification.  Relief denied

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant provided a certificate of completion of a 1st Offender Driving-Under-the- Influence Program and a letter verifying his completion of a substance abuse rehabilitation program as documentation of his post-service.  While the Board acknowledges the Applicant’s efforts, the Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted.

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 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until 31 August 2001). 

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 111, drunken driving, and Article 112a, wrongful possession 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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

E.  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

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