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

 ex-Pvt, USMC
Docket No. MD05-00668

Applicant’s Request

The application for discharge review was received on 20050308.  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 or a personal appearance before a traveling panel closest to Nashville, TN.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area at the Washington, Navy Yard.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050615.  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:

1.  “Since being discharged from the military I’ve realized my mistakes and corrected them.  I now have a wife and child and have not been able to find adequate employment because of my discharge.  The military provided me with several marketable skills, but because of my mistakes when I was young and irresponsible I cannot use them and reach my full potential.  Please upgrade my discharge so that I may have a career instead of just a job.  My family would benefit greatly if you did.  Thank you for your consideration.”

Documentation

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

Applicant’s DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980806 - 980810	COG

Period of Service Under Review:

Date of Enlistment:  980811		Date of Discharge:  010222

Length of Service (years, months, days):

	Active:    02  06  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rank:  PFC			MOS:  3531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (7)			Conduct:  3.5 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  REB (2), LoA

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:

980805:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

000524:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 000519, tested positive for THC.

000531:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongful use, possession, etc of a controlled substance. On or about 000524, SNM tested positive for drug use, according to NAVDRGLAB/MDSTG 241751 MAY 00.
Awarded forfeiture of $365.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

000531:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement through urinalysis confirmed by NAVDRUGLAB message dated 241751Z May 00.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000606:	CSACC found Applicant did not meet the criteria for substance dependency and abuse

000717:	Applicant signed statement of understanding of treatment for substance abuse at a VA medical center.

000825:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Failed to go at the time prescribed to appointed place of duty on 0700, 000701, to wit: check in for restriction.
	Charge II: violation of the UCMJ, Article 134:
	Specification: Break restriction on 2200, 000630.
	Finding: to Charge I and the specification thereunder, guilty.  Charge II and specification thereunder, not guilty.
	Sentence: No sentence was given.
	CA action 000825:  Approved and executed.

000918:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 000911, tested positive for THC.

000922:	NJP for violation of UCMJ, Article 112A:
Specification: In that LCpl W_. B.P., did at MCAS New River on or about 11 Sep 00 test positive for use of a controlled substance on 000911, to wit: THC as verified by NAVDRUGLAB msg 18185522 Sep 00.  Awarded restriction and extra duties for 45 days, reduction to E-2.  Not appealed.

001003:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement, marijuana identified through urinalysis confirmed by NAVDRUGLAB message date 181855Z Sep 00.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001219:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse.  The least favorable characterization of service, which you may receive, is an other than honorable.

001219:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

001219:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your illegal use of marijuana during this enlistment as evidenced by your positive urinalysis as confirmed by Navy Drug Screening Laboratory, Jacksonville, Florida.  This type of conduct is not indicative of the standards set forth by the U.S. Marine Corps.  

010209:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongful use of a controlled substance – that PFC W_, B.P. did at MCAS New River on or about 26 Jan 01 did test positive for wrongful use of a controlled substance to wit: THC as verified by NAVDRUGLAB msg 261540 Jan 01.
Awarded restriction for 60 days, reduction to E-1.  Not appealed.

010220:	SJA review determined the case sufficient in law and fact.

010220:	GCMCA, Commanding General, 2d Marine Aircraft Wing, Cherry Point, NC, 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 20010222 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.   The Applicant contends that he realizes that he made mistakes while in the military and that he has “corrected them.”  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 documentation for the Board to consider.  Relief denied.
 
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 employment opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

The Applicant attributes his problems in the U.S. Marine Corps to the mistakes that he made when he was “young and irresponsible."  While he may feel that his immaturity 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.

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

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  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 2 retention warnings and 3 nonjudicial punishment proceedings for violations of Article 112a (wrongful use of a controlled substance) of the UCMJ.  Further, the Applicant was found guilty by a Summary Court-Martial of violating Article 86 (failure to go, going from place of duty) 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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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