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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-00666

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 20050811.  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 on the application:

“My discharge was unfair and underserved.  I failed 1 urinalysis.  That is grounds for separation, but I don’t think the board members took into consideration, how my attitude and everyday actions where after that.  I was in the Marines another year and 2 months after I failed the urinalysis.  There where other Marines who failed urinalysis after I did and got kicked out before me.  Why? I did everything I could to stay in, then when I get the boot, I requested a General U.H.C., but it wasn’t happening.”

Applicant’s Remarks: 
“I can’t change the past, but I can make it better for me and my family in the future.  So please consider what I’ve said in the documents attached.”

Documentation

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

Statement from PVT M___  (Applicant)  to Commanding General, II MEF, undated, unsigned (2 pgs)
Service Record Book and Medical Record Documents (47 pgs)   

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		010709 - 010715	COG

Period of Service Under Review:

Date of Enlistment:  010716		Date of Discharge:  031023

Length of Service (years, months, days):

	Active:    02  03  08
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  52

Highest Rank:  LCpl			MOS:  0621

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NA*			Conduct:  NA*

Military Decorations:  None

Unit/Campaign/Service Awards:  National Defense Service Medal, Rifle Expert Badge

Days of Unauthorized Absence:  None

*Not Available.

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:

010708:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

010709:	Dependency wavier granted.

020905:	NAVDRUGLAB, [Jacksonville, FL], reported Applicant’s urine sample, received 020830, tested positive for THC.

020905:	Not recommended for promotion to CPL due to drug use, positive urinalysis result 052240ZSEP02 (18 months).

020918:	NJP for violation of UCMJ, Article 112a: At BCo, 8th CommBn, Camp Lejeune, North Carolina, on or about 22 August 02, SNM wrongfully used a scheduled I controlled substance, THC.
Awarded forfeiture of $619.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-2.  1 month forfeiture suspended for 6 months.  Not appealed.

021213:	NJP for violation of UCMJ, Article 121: At HP-513, 8th CommBn, Camp Lejeune, North Carolina, on or about 20 May 02, SNM did steal a cellular telephone, of a value of about $80, the property of LCpl T____; violation of UCMJ, Article 134: At HP-513, 8th CommBn, Camp Lejeune, North Carolina, on or about 20 May 02, with intent to defraud, SNM did falsely pretend to be LCpl T____, to obtain cellular telephone service, of a value of about $200.
Awarded forfeiture of $552.00 pay per month for 1 month, restriction and extra duties for 30 days, reduction to E-1.  Not appealed.
 
030129:	Evaluation Report for Substance Abuse: No Diagnosis.  Recommendations: Impact to be scheduled by command, weekly visits with Unit SACO until treatment, individual should be held strictly accountable for their action and per ref (a) MCO P1700.24b, individual should be processed for Administrative Separation for use of an illicit substance.  

030129:	Statement of Understanding of Treatment for Substance at VA Medical Center.
  
030228:	Applicant completed all requirements for the IMPACT program at the Substance Abuse Rehabilitation Program.

030323:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. The basis for this recommendation is your illegal use of drugs.

030324:	Applicant advised of rights and having not consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

030324:	Commanding Officer, 8th Communication Battalion, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding officer’s comments: (verbatim):  Private M_ [Applicant] had had one battalion NJP for Article 112a (Wrongful Use of a Controlled Substance – Marijuana).  If this Marine were discharged, I would recommend the discharge be under other than honorable conditions.  The respondent has been evaluated at the Consolidated Drug and Alcohol Treatment Facility and has received a statement of understanding for treatment at the Veterans Administration Medical Center as documented in enclosures [VA Statement of Understanding] and [Substance Abuse Evaluation ltr 5300 dtd 29 Jan 03].  Retention of the respondent would adversely affect the morale, discipline, and military effectiveness of this organization.

030731:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse and that the misconduct warranted separation.  By a vote of 2-1, the board recommended characterization be under other than honorable conditions.

030813:	Applicant’s “statement of rebuttal” to CG, II MEF.

030916:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  

031007:	SJA review determined the case sufficient in law and fact.

031007:	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 20031023 under other than honorable conditions for misconduct due to drug abuse (A).  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 (B and C).

The Applicant contends that his discharge was “unfair and undeserved,” and that he failed “1 urinalysis.”  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.  Further, 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 nonjudicial punishment proceedings for violations of Articles 112a, 121 and 134 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.

The Applicant opines, “I was in the Marines another year and 2 months after I failed the urinalysis.  There where other Marines who failed urinalysis after I did and got kicked out before me.”  The Applicant’s positive urinalysis was reported to his command on 20020905.  The Applicant’s discharge was directed on 20031007.  The Applicant was discharged prior to 20050714, his end of active service date.  As such, the Board did not find the Applicant’s discharge improper and inequitable.  Relief on this basis 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 and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any 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.  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 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.

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