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

 ex-PVT, USMC
Docket No. MD05-00659

Applicant’s Request

The application for discharge review was received on 20050302.  The Applicant requests the 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050620.  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

Applicant’s issues, as stated:

1.  “I received a less than honorable discharge from the United States Marines on Feb. 12 1999.  I had served honorably for over 3 years before I made some stupid mistakes.  I admitted my guilt and took my punishment in the brig while others in the group at the time denied guilt and got legal counsel to represent them.  Prior to the drug abuse, I had received a good conduct medal and other medals and awards.  National Defense Service Medal, Letter of Appreciation 2d Awd, Sea Service Deployment Ribbon, Armed Forces Service Medal, and Rifle Sharpshooter Badge.  Since leaving the Marines I have been steady employed.  I worked as manager of Ridge Risher Mountain Bike stores for over 2 years in Fayetteville and Beckley West Virginia until the owners sold the business.  I then went to school to earn my C.D.L..  I presently work as a self-employed owner operator. 
I am now a mature adult who regrets past mistakes.  I ask for a second chance.”

Documentation

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

Applicant’s DD Form 214
Character Reference Letter from D__ E___ (not dated)
Character Reference Letter from M__ R. A___ (2) (not dated)
Character Reference Letter from P___ G___, U.S.A., retired (not dated)
Reference Letter from CPT J___ M. A___, U.S.A. (not dated)
Criminal Record Information with cover letter dated October 15, 2004 (3 pages)
Driving Record Information with cover letter dated October 15, 2004 (3 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		950221 - 951022	COG

Period of Service Under Review:

Date of Enlistment:  951023		Date of Discharge:  990212

Length of Service (years, months, days):

	Active:    03  03  20
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  45

Highest Rank:  LCpl			MOS:  1833

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (9)			Conduct:  4.0 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, LOA(2), SSDR, AFSM, NM, RSB, GCM

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:

950221:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

971123:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident which resulted in suspension/revocation of base driving privileges from 971125 to 980107.]  Sources of assistance provided, disciplinary and discharge warning issued.

981109:	NAVDRUGLAB Jacksonville, FL, reported Applicant’s urine sample, received 981027, tested positive for cocaine.

981117:	Counseled for deficiencies in performance and conduct.  [Conviction by Onslow County, NC authorities for DWI (.11 BAC) on 980107.  SNM received suspended/revoked driving privileges for one year and ordered to pay $80.00 court cost.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981119:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a.
	Specification: Did at Charlie Company, 2d Assault Amphibious Battalion, 2d Marine Division, on or about 981010, wrongfully use a controlled substance, specifically, cocaine.     
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Forfeiture of $617.00 pay per month for 1 month, reduced to E-1, confinement for 30 days.
	CA action 981119:  Sentence approved and will be executed.

981215:	Clinical Director, Alcohol Treatment Facility, Naval Hospital Substance Abuse evaluation indicates applicant was diagnosed as a drug abuser (isolated incident).  Recommended for administrative processing.
   
981215:	Applicant notified of intended recommendation for discharge with the least favorable characterization under other than honorable conditions by reason of misconduct due to drug abuse.

981215:	Applicant advised of rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

981215:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  

990201:	SJA review determined the case sufficient in law and fact.

990208:	Commanding General, 2d Marine Division, 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 19990212 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 two retention warnings, a civil conviction for driving while impaired and a summary court-martial conviction for violating Article 112a of the UCMJ.  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.

There is credible evidence in the record that the Applicant used illegal drugs, specifically cocaine.  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.  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.

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, documentation of community service and credible evidence of a substance free lifestyle.  As of this time, the Applicant has not provided sufficient 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.  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 Jan 97 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 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