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

ex-PFC, USMCR
Docket No. MD05-00784

Applicant’s Request

The application for discharge review was received on 20050404.  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 designated a civilian representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050831.  After a thorough review of the available 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 or reason for 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

Issues submitted by Applicant and representative:

“The applicant was administratively released from his Marine Corp Unit for misconduct (Drug Abuse) and awarded an Other Than Honorable (OTH) discharge.  It is noted that one of three Board Members voted for a General Discharge.  Unfortunately, the applicant did not appear before the Board to explain the circumstances and extent of his drug abuse.  If he had appeared before the Board, he would have explained that he was not a drug user and that his experimental use of marijuana was an indiscretion that he regrets.  He also would have informed the Board that he wanted to continue his Marine Corp service and that he was willing and able to serve wherever needed.

It is the applicant’s contention that the characterization of service (OTH) is unreasonably harsh in light of the “relatively minor offense” that led to his release.  Therefore, it is respectfully requested that the Navy and Marine Corp Discharge Review Board address the following issues:

1.   The (OTH) characterization of service was too harsh for the minor offense.  The offense was not treated as a “serious offense” by command since there were no Court-Martial changes pending against the applicant.  Yes, the applicant’s youthful indiscretion was unwise but the offense was not so horrific to warrant an (OTH) discharge; especially when there were lesser administrative discretions available to the board and command.  Marine Corp regulations suggest that a characterization (OTH) should be reserved for serious offense.  Other possible justifications for (OTH) are addressed in Issue 2.
2.   The (OTH) discharge was inequitable in view of the minor offense and the Applicants overall quality of service.  In December 2002, shortly before his release from the Marine Corp, the applicant received a Proficiency and Conduct rating of (4.4/4.3).  Also at the Board proceedings, the applicant’s officer supervisor stated: “He is an average Marine.” Considering the applicant’s officer supervisor’s comment and the applicant’s proficiency and conduct rating it would appear that the applicant’s overall performance was acceptable.
3.   Youth and immaturity was a mitigating factor that should have been considered in the characterization of service, particularly in judging the nature of the offense.

Since his release from the Marine Corp Reserve the Applicant has continued to attend college full-time, works part-time, and participates in church and community activities.  The (OTH) discharge is a difficult burden for a young person to overcome who is committed to becoming a productive citizen.  His ambition is to seek employment with a governmental agency after college graduation.  His characterization of service will likely preclude that eventuality as will his ability to gain employment with company’s involved in government contracts.

Thank you for your consideration.”

Issues submitted by Applicant’s representative:

“As Mr B_ (Applicant)’s representative, I am aware of the content of his application.  The issues stated in para. 8, DD Form 293 are the issues that we are requesting that the Board address.  I do not have any additional issues to submit.  Thank you for the record review and consideration of the merits of this case.”

Documentation

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

Morgan State University Transcript, dated August 30, 2004
Character reference, dated March 1, 2005
Character reference, dated February 8, 2005
One page from Applicant’s service record, dated January 5, 2004

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  20010621		Date of Discharge:  20040105

Length of Service (years, months, days):

	Active:    00  05  03
	Inactive:  02  02  13

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  51

Highest Rank:  LCpl			MOS:  3051

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (3)			Conduct:  4.1 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized (as stated on DD Form 214): Rile Marksman Badge

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:

010705:	Applicant reported for initial tour of active duty for training.

011122:	Applicant released from initial tour of active duty for training with a characterization of service of HONORABLE by reason of completion of required active service (IADT) USMCR.

020510:	Applicant tested positive for THC usage identified through urinalysis confirmed by Navy Drug Lab Jacksonville, FL msg 102139ZMay02. [Note: Extracted from Page 11 counseling entry dated 20020601.]

020601:	Applicant reported to active duty for annual training.

020601:	Applicant counseled for deficiencies in performance and conduct (illegal drug involvement).  Necessary corrective actions explained, sources of assistance provided.

020605:	Battalion NJP for violation of UCMJ, Article 112a:
Specification: In that LCpl B_ (Applicant), H&SCo, 4th CEB, Baltimore, MD at an unknown location on or about 5 May 02, wrongfully used marijuana.
Awarded forfeiture of $309.00 per month for 1 month, reduction to E-2.  Not appealed.

020615:	Applicant informed eligible but not recommended for promotion due to restrictions listed in MCO P1400.32 par 1204.3f-3gg.   [Referenced MCO provides: Marines will not be promoted within 18 months of the date confirmed distribution, use, or possession of illegal drugs took place.] [Note: Applicant was not available for signature.]

020615:	Applicant released from active duty for annual training.

020915:	Applicant informed eligible but not recommended for promotion to LCpl for the Oct 2002 promotion quarter because of unsatisfactory drill participation. [Note: Applicant was not available for signature.]

021215:	Applicant informed eligible but not recommended for promotion due to restrictions listed in MCO P1400.32 par 1204.3f-3gg.  [Note: Applicant was not available for signature.]

030308:	Applicant informed eligible but not recommended for promotion due to restrictions listed in MCO P1400.32 par 1204.3f-3gg.

030404:	Applicant informed eligible but not recommended for promotion to PFC because of an administrative separation package recommending discharge was forwarded to GCMCA on N/A.  [Note: Administrative error – entry mistakenly read PFC instead of LCpl.]

031224:	Commanding Officer, Headquarters and Service Company, Fourth Combat Engineer Battalion, Fourth Marine Division, recommended administrative discharge of Applicant. [Note: Extracted from GCMCA (Commanding General, Headquarters, Fourth Marine Division, New Orleans, LA) letter 1900 dated 20040105.]

040105:	GCMCA [Commanding General, Fourth Marine Division, New Orleans, LA] informed Commandant of the Marine Corps that Applicant was directed discharged with an under other than honorable conditions by reason of misconduct due to drug abuse.

040108:	Commanding Officer, Fourth Combat Engineer Battalion, informed Commandant of the Marine Corps (SJA) that Applicant was discharged from Selected Marine Corps Reserve with an under other than honorable conditions by reason of misconduct due to drug abuse on 20040105.

Service Record Book contains a partial Administrative Discharge package.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040105 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant contends that the service characterization of under other than honorable conditions was inequitable because his drug use was a relatively minor offense.  The illegal distribution, possession or use of drugs is not tolerated in the Marine Corps; therefore, illegal drug use is not a minor offense.  Whenever a Marine is involved in misconduct due to drug abuse, on the first offense, commanders shall process the Marine for administrative separation.  There is clear evidence in the Applicant’s service record that the he used illegal drugs.  Indeed, the Applicant received non-judicial punishment on 20020605 for violation of UCMJ Article 112a Wrongful use of controlled substance.  Evidence of such misconduct may be used to characterize a Marine’s discharge as under other than honorable conditions.  The Board found that the Applicant’s service was equitably characterized.  And so, relief on this basis is denied.

The Applicant also contends that the service characterization of under other than honorable conditions was inequitable considering the Applicant’s overall quality of service.  A service characterization of under other than honorable conditions 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 record contains a nonjudicial punishment proceeding on 20020605 for violation UCMJ Article 112a; a counseling entry for deficiencies in performance and conduct concerning illegal drug use; a counseling entry not recommending promotion due to unsatisfactory drill participation; a counseling entry not recommending promotion due to pending administrative separation; and three counseling entries not recommending promotion due to confirmed illegal drug use.  The Applicant’s conduct and performance, which forms the primary basis for determining the character of his service, reflect a failure to meet the requirements of his contract with the Marine Corps.  Therefore, the Board found that the Applicant’s service was equitably characterized.  Relief on this basis is denied.

Further, the Applicant contends that youth and immaturity were mitigating factors.  The Board recognizes that serving in the Marine Corps is challenging.  Our country is fortunate to have the many young men and women who are willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges.  Given that the Applicant did not attend his Administrative Separation Board proceedings, he missed a key opportunity to argue youth and immaturity.  At the same time, the Applicant did not provide any documentary evidence to show that these factors were not considered.  The Board found that the Applicant's service was equitably characterized, and relief on this basis is denied.

The Applicant informs the Board that he intends to seek employment with a governmental agency or companies involved with government contracts.  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.  Relief on this basis is 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 thoroughly reviewed the Applicant’s service records and discovered no impropriety or inequity in his administrative separation.  Although the Applicant’s service records did not contain the entire discharge package, documents in the service records and the Applicant’s DD Form 293 indicate that the entire discharge package was completed.  There is no evidence in the records, nor did the Applicant provide any evidence, to refute the presumption of regularity in this case.  Relief on this basis is not warranted.

The following is provided for the Applicant’s edification.  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 Board 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.  The Applicant provided his college transcript and two character references for consideration.  However, the Applicant's efforts need to be more encompassing to include verifiable proof of 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 sufficient post-service documentation for the Board to consider relief on this basis.

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 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.

D.  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.

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