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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-00792

Applicant’s Request

The application for discharge review was received on 20050404.  The Applicant requests the Discharge 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 Congressman B_ E_ as the representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that members of Congress do not represent Applicants before the Board and that written authorization must be obtained from that Congressman.  Such authorization was not received; therefore the case was reviewed without representation.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060302.  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 and reason for discharge shall not change.  The discharge shall remain as a bad conduct discharge by reason of court-marital.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“There are several concerns that I wish to address. 1) There was no mention of a random drug test, as far as I know I was singled out to be tested and there was no probable cause to my knowledge.  Let me explain, all my life I wanted to be a Marine.  I wanted to fight for my country.  I scored well on the asvab test and my mother begged me to apply for something that would take me out of the line of fire.  I yielded to her request and was assigned to be an F-18 Jet engine mechanic. I enjoyed my job but didn’t quite fit in.”

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):

	Inactive:  USMCR (DEP)	20000930 – 20001010		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20001011		Date of Discharge:  20030724

Length of Service (years, months, days):

Active:    02  09  13  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			49 days

Age at Entry:  19 

Years Contracted:  4 

Education Level:  12				AFQT:  72

Highest Rank:  LCpl				MOS:  6227

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9*			Conduct:  3.8*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Rifle Marksman Badge.

*Not Available

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority:  MARCORSEPMAN Par. 1105.

Chronological Listing of Significant Service Events:

000929:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

010327:	NAVHOSP Pensacola, FL:  19 y/o (Applicant) with feelings of depression since girlfriend OD’d.  This occurred last week.  Not suicidal at the moment, but very depressed last night.  Wants to get out of USMC and be near his family.  
	A:  R/O depression vs grief reaction.

010605:	Counseled for deficiencies in performance and conduct.  [Article 92, failure to obey a lawful order of the UCMJ, wrongfully consuming alcohol while under the age 21.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010606:	NJP for violation of UCMJ, Article 92:  On active duty, did at NAMTRAU Oceana, VA on active duty, did at NAMTRAU Oceana, on or about 010531, violate a lawful general, to wit: COMNAVMIDLANT/SOPA (ADMIN) HAMPINST 5400.1, dated 010320, by wrongfully consuming alcohol while under the age of 21.
Award:  Forfeiture of $250.00 pay per month for 2 months, restriction and extra duty for 14 days (suspended for 6 months), reduction to E-1.  Not appealed.

020507:	Chronological Record of Medical Care:  Applicant found fit for pretrial confinement.

020507:	Joined Naval Consolidated Brig, Naval Weapons Station, Charleston, South Carolina, for pre-trial confinement.

020625:	Special Court Martial.
	Charge I:  violation of the UCMJ, Article 112a, (5 specifications).
	Specification 1:  On or between 010801 and 010930, in or near Marine Corps Air Station, Beaufort, SC, on divers occasions, wrongfully use methamphetamine.  Plea: Guilty.  Findings: Guilty.
	Specification 2:  On or between 011101 and 020131, in or near Garner, North Carolina, on divers occasions, wrongfully use methamphetamine.  Plea: Guilty.  Findings: Guilty.
Specification 3:  On or between 020301 and 020412, in or near Garner, North Carolina, on divers occasions, wrongfully use methamphetamine.  Plea: Guilty.  Findings: Guilty.
Specification 4:  On or between 020301 and 020402, in or near Garner, North Carolina, on divers occasions, wrongfully use amphetamine.  Plea: Not Guilty.  Findings: Withdrawn.
Specification 5:  On or between 020323 and 020402, in or near Garner, North Carolina, on divers occasions, wrongfully use cocaine.  Plea: Guilty.  Findings: Guilty.
Sentence:  Confinement for 75 days, reduction to E-1, Bad Conduct discharge.
	CA 021008:  The sentence approved and, except for bad conduct discharge, will be executed; however, all confinement in excess of sixty (60) days will be suspended for a period of six months from the date of this action, at which time, unless sooner vacated, the suspended portion will be remitted without further action.
	
020625:	Applicant requested clemency from the Naval Clemency and Parole Board, this date.

020626:	From confinement, restored to full duty. 

020730:	Addictions Rehabilitation Clinic, Jacksonville, FL:  Applicant completed formal treatment at ARC for drug dependence.  Applicant was assigned to residential level of care for a period of ten days after which he was transitioned to intensive outpatient level of care.  He remained in this level of care until completion of treatment.
	DSM-IV Discharge Diagnosis:  
	Axis I:  Amphetamine Dependence with physiological dependence (DSM-IV 304.40)
	Alcohol Dependence with physiological dependence

020802:	Applicant to appellate leave.

020916:	Staff Judge Advocate’s Recommendation that the sentence be approved as adjudged, except the bad conduct discharge, with confinement in excess of 60 days be suspended for a period of 6 months from the date of the action.

020924:	Applicant requested clemency from Commanding Officer, Marine Aviation Logistics Squadron-31, this date.

020930:	Addendum to Staff Judge Advocate’s Recommendation still recommending that the sentence be approved as adjudged, except the bad conduct discharge, with confinement in excess of 60 days be suspended for a period of 6 months from the date of the action.

030327:	NMCCCA:  Affirmed findings and sentence.  

030625:	Appellate review complete.

030722:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030724 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  That sentence was subsequently approved by both the convening and appellate review authorities (A and B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).  The Board presumed regularity in the conduct of governmental affairs (D).

Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency not warranted.  The Applicant was convicted in accordance with his pleas of four specifications of wrongful use of a controlled substance, to wit:  methamphetamine, amphetamine, and cocaine over a period of approximately 8 months while on active duty.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  As such, the Board unanimously concluded that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Relief denied.

The Applicant contends that the urinalysis in which he tested positive for illegal drugs was conducted was defective because it was not a random test and there was no probable cause to test him.  There is a presumption of regularity in the conduct of governmental affairs.  This presumption permits the Board to presume that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s service and subsequent administrative processing.  The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his urinalysis was in any way defective.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Additionally, the Board notes that the Applicant was free to litigate this issue during his court-martial proceedings and subsequent appellate review but failed to do so both times.  Finally, the Board notes that a plea of guilty is the strongest form of proof known to the law.  Any evidentiary issues raised now by the Applicant do not negate his plea of guilty to the charged misconduct at special court martial.  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 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 September 2001 until Present. 

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a, wrongful use, possession, etc., of a controlled substance.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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