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

 Ex-Pvt, USMC
Docket No. MD05-00693

Applicant’s Request

The application for discharge review was received on 20050309.  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 20050727.  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:

“I was informed by a 1st Lieutenant in the United States Marine Corps that after a period of six months I would be eligible for a discharge upgrade, from under other than honorable conditions to under honorable conditions.”

Documentation

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

Applicant’s DD Form 214  (Member 4 copy)
Applicant’s letter to the Secretary of The Navy Council of Review Board, dated March 26, 2005

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		030114 – 030901	COG

Period of Service Under Review:

Date of Enlistment:  030902		Date of Discharge:  040225

Length of Service (years, months, days):

	Active:    00  05  24
	Inactive:  None

Age at Entry:  19			Years Contracted:  5 

Education Level:  12			AFQT:  63

Highest Rank:  Pvt			MOS:  9900

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (2)*			Conduct:  3.6 (2)*

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, MRB

Days of Unauthorized Absence:  None

*Extracted from Commanding Officer, Headquarters and Support Battalion, School of Infantry, Training Command, Camp Lejeune, ltr dtd January 27, 2004.

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:

030108:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

030114:	Pre-service waiver for drugs granted.

040107:	NAVDRUGLAB JACKSONVILLE FL reported Applicant’s urine sample, received 040105, tested positive for cocaine.

040114:	NJP for violation of UCMJ, Article 112a:
Specification:  In that Private F_ (Applicant), USMC, Hotel Company, Marine Combat Training Battalion, School of Infantry, Training Command, Camp Lejeune, NC did, at an undisclosed location on or between 031226 and 040101, wrongfully used cocaine, a schedule controlled substance.
Awarded forfeiture of $596.00 pay per month for 2 months, restriction for 60 days.  Not appealed.

040120:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by his use of cocaine as identified by positive urinalysis test results, a violation of Article 112a.

040120:	Applicant advised of rights and, having elected not to consult with counsel, elected to waive his right to a hearing before an administrative discharge board.

040127:	Commanding Officer, Headquarters and Support Battalion, School of Infantry, Camp Lejeune, NC recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the Applicant's use of cocaine, as identified by NAVDRUGLAB JACKSONVILLE FL message 071939Z JAN 04.  Commanding Officer’s comments:  "Pvt F_ (Applicant) has demonstrated a blatant disregard for the Marine Corps’ policy towards drug use and has shown definite lack of Honor, Courage, and Commitment through his use of cocaine.  He has proven to me that he does not possess the discipline for continued service in the Marine Corps."

040204:	Commanding Officer, School of Infantry, Camp Lejeune, NC forwarded the administrative separation proceedings to Commanding General, Marine Corps Base, Camp Lejeune, NC concurring with the Battalion Commander that the Applicant be discharged by reason of misconduct due to drug abuse, and that the characterization of service be under other than honorable conditions.

040212:	SJA review determined the case sufficient in law and fact.

040220:	Commanding General, Marine Corps Base, Camp Lejeune, NC advised the Commandant of the Marine Corps (MMSB) that the Applicant will be discharged 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 20040225 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).

The Applicant states that he was informed that after six months, the characterization of his discharge would be automatically upgraded to honorable.  The Applicant is advised that the characterization of discharge is based upon the conduct of the service member, as documented in his or her service record, and not upon the passage of time subsequent to the service member leaving military service.  The Applicant's service records shows that, on 20040120, when officially notified of his command's intent to administratively separate him, he was advised of the purpose and scope of the Naval Discharge Review Board and the Board for Correction of Naval Records, as attested by his and his witness' signatures after the "Statement of the Individual" section of that document.  That document specifically states that neither board will upgrade unfavorable discharges based solely on the expiration of a set period of time following separation from service.  Relief on this basis is denied. 

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 the Marine Corps.  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.  

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 P1900.16F), 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 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