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

 ex-PVT, USMC
Docket No. MD05-00846

Applicant’s Request

The application for discharge review was received on 20050413.  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.  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

No issues were submitted by the Applicant. 

Documentation

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

No additional documentation.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		990415 - 990517	COG

Period of Service Under Review:

Date of Enlistment:  990518		Date of Discharge:  031229

Length of Service (years, months, days):

	Active:    04  04  21 		(Excludes lost time)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  40

Highest Rank:  Cpl			MOS:  3381

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0*			Conduct:  4.0*

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, RMB, SSDR

Days of Unauthorized Absence:  81**

*Extracted from SJA ltr dtd December 19, 2003
**Cannot be completely verified by service record book

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:

990413:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

991222:	Applicant to unauthorized absence.

000122:	Applicant declared deserter.  

000125:	Applicant from unauthorized absence (surrendered to Marine Liaison Office, Los Angeles International Airport, Los Angeles, CA).

000217:	NJP for violation of UCMJ, Article 86:
Specification:  PFC D_ (Applicant), was, on or about, 0001; 991222; absent from CG, 3D FSSG, Okinawa, Japan.
Violation of UCMJ, Article 87:
Specification:  PFC D_ (Applicant), did, on or about, 1220, 991222, miss movement to Commanding General, 3D FSSG, Okinawa, Japan, (MCC1C2).
Awarded forfeiture of $502.00 pay per month for 1 month (suspended for 6 months), restriction and extra duties for 45 days.  Reduction to E-1.  Not appealed.

020713:	Applicant to unauthorized absence.

020811:	Applicant from unauthorized absence.

020819:	NJP for violation of UCMJ, Article 86:
Specification:  In that Corporal D_ (Applicant) was UA from his appointed place of duty from on or about July 13, 2002, did not return until on or about 1400 on 12 August 02.
Awarded forfeiture of $692.00 pay per month for 2 months (suspended for 3 months), restriction and extra duties for 45 days.  Not appealed.

030609:	Lost time on 20030609 (1) day (IHCA).

030620:	NAVDRUGLAB Jacksonville, FL, reported Applicant’s urine sample, received 030610, tested positive for THC.

030716:	Applicant was placed on Legal Hold based on being subject of a Battalion NJP for the testing positive to THC.

030721:	Period of lost time begins.  [Extracted from DD214]

030730:	Period of lost time ends.  [Extracted from DD214]

030731:	Period of lost time begins.  [Extracted from DD214]

030805:	Period of lost time ends.  [Extracted from DD214]

031114:	Applicant completes Impact Treatment given at Substance Abuse Rehabilitation Program.

031118:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 112a:
	Specification:  Wrongful use of marijuana.
	Finding: to Charge I and the specification thereunder, guilty.
	Sentence: Forfeiture of $904.00 pay per month for 1 month, and restricted and extra duties for 45 days.
	CA action 031120:  Sentence approved and ordered executed.

031118:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NAVDRUGLAB results on June 10, 2003 that showed to have a THC level of 584 ng.

031120:	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.

031121:	Commanding Officer, Headquarters and Service Battalion, 2d Force Service Support Group, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments: “Based upon enclosures [(2) Statement of Immediate Superior, GySgt D_, (3) Statement of Immediate Superior, Sgt P_, (4) Drug testing Register dtd 6 Jun 03, (5) Chain of Custody, (6) NAVDRUGLAB dtd 10 Jun 03, (7) Certificate of Completion of Impact Treatment, (8) Certified true copies of standard SRB pages, (9) Record of Service], it is my opinion that an Other Than Honorable conditions discharge is warranted.  This recommendation is based off Pvt D_ (Applicant)’s NAVDRUGLAB results that showed Pvt D_, (Applicant) to have a THC level of 584.  Due to Pvt D_ (Applicant)’s inability to perform and conduct himself as a Marine, it is my recommendation that he be discharged with an Other Than Honorable conditions due to drug abuse.”

031219:	SJA review determined the case sufficient in law and fact.  SJA comments:  “…SNM was subsequently tried and convicted by SCM on 18 November 2003 and sentenced to 45 days restriction.  As long as he is separated before completion of the 45-day restriction, his service may be properly characterized as OTH.”

031222:	Commanding General, 2d Force Service Support Group, advised the Commandant of the Marine Corps, Headquarters, U. S. Marine Corps (MMSB), that the Applicant’s discharge was directed 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 20031229 under other than honorable conditions for misconduct due to drug abuse (A and 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 submitted no issues for consideration.

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 86 and 87 of the UCMJ.  The Applicant’s violations of the UCMJ for unauthorized absences of 30 days or more and missing movement are considered serious offenses.  The Applicant was also convicted at summary court-martial for violating Article 112a of the UCMJ for illegal drug use.  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 reenlistment contract with the Marine Corps.  Relief 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 documentation for the Board to consider.  Relief on this basis 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.  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.  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 87, unauthorized absence for more than 30 days and Article 87, missing movement.

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