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

FOR OFFICIAL USE ONLY

 ex-Pvt USMC
Docket No. MD05-00889

Applicant’s Request

The application for discharge review was received on 20050425.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050825.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case an impropriety in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was 4-1 that the discharge and the reason for discharge shall change to:  HONORABLE/COMPLETION OF REQUIRED ACTIVE SERVICE, authority: MARCORSEPMAN Par. 1005, Separation Code “JBK1.”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I would like an upgrade because I want to go into law enforcement.  When I was younger, I was easily influenced and made some bad choices.  Now that I am older I have become my own man and make wiser choices.  I have a family to take care of, a steady job, and attend church on a regular basis.  It makes me sad to know that we are in a war and I could never be called back in to fight for my country or wear my uniform again.  I have always wanted to be a police officer and help young people not to make the mistake I have made.  I would like to feel proud again and call myself a genuine Marine.”

Documentation

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

Applicant’s DD Form 214
Ltr from Hewitt Police Department, dtd June 3, 2005
Employment Character Reference ltr from S_ B_, dtd May 26, 2005
Character Reference ltr from B_ E_, pastor, dtd May 25, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19930416 – 19930607	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19930608		Date of Discharge:  19970814

Length of Service (years, months, days):

Active:    04  01  02  			(Excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  9 days
	Confinement:		  27 days

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  58

Highest Rank:  LCpl				MOS:  0352

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (11) 			Conduct:  4.1 (11)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Expert Badge (3rd award), Pistol Sharpshooter Badge, National Defense Service Medal, Letter of Appreciation (3rd award), Meritorious Mast

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:

Undated:	Pre-service waiver for morals (minor in possession of a handgun) requested.

Undated:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.  [Extracted from undated request for waiver for morals].

951103:	Applicant enrolled into Formal After care.  [Extracted from CSACC ltr dtd 960123]

960123:	Applicant released from CSACC Continuing Care program as a treatment failure due to unexcused missed sessions.  [Extracted from CSACC ltr dtd 960123]

960207:	Applicant to unauthorized absence, 0700 960207.

960216:	Applicant from unauthorized absence, 0700 960216.

960306:	NJP for violation of UCMJ, Article 86:  Did on or about 0700, 960207, w/o authority, absent himself from his appointed place of duty and did remain so absent until on or about 0700, 960216.
	Award:  Forfeiture of $220.00 per month for 1 month, restriction and extra duty for 14 days.  Forfeiture suspended for 6 months.  Not appealed.

960416:	Acknowledged understanding of eligibility but non-recommendation for promotion to Cpl for the month of May due to recent NJP. Applicant chose not to make a statement.

960502:	Retention Warning:  Advised of deficiencies in performance and conduct (Loss of DD Form 2MD U.S. Armed Forces Identification Card and failure to maintain military grooming standards/personal appearance), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970225:	NAVDRUGLAB, San Diego, reported Applicant’s urine sample, received 970214, tested positive for amphetamine/methamphetamine.
970424:	Acknowledged understanding of eligibility but non-recommendation for promotion to Cpl due to poor judgment/awaiting NJP. Applicant chose not to make a statement.

970528:	Acknowledged understanding of eligibility but non-recommendation for promotion to Cpl due positive urinalysis, poor judgment. Applicant chose not to make a statement.

970610:	Summary Court-Martial.
	Charge: violation of the UCMJ, Article 112a:
	Specification:   Wrongful use of amphetamine/methamphetamine.
	Finding: to Charge and the specification thereunder, guilty.
	Sentence:  30 days confinement, forfeiture of $600.00 pay per month for 1 month, reduced to E-1.
	CA action, undated:  Sentence approved and ordered executed.
 
970630:	Acknowledged understanding of eligibility but non-recommendation for promotion to Cpl for July, August and September 1997 due to recent court-martial resulting in reduction to PVT and a lack of discipline.  Applicant not able to sign acknowledgment due to confinement. 

970707:	Applicant released from confinement.

970709:	Applicant refused medical officer’s evaluation.

970710:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of drug abuse.  The factual basis for the recommendation is the Applicant’s wrongful use of a controlled substance.

970710:	Applicant advised of rights and having consulted with counsel, elected to waive all rights.

970711:	Commanding Officer, 1st Marines, 1st Marine Division, recommended to Commanding General, 1st Marine Division, Applicant’s under other than honorable conditions discharge by reason of misconduct due to drug abuse.  

970717:	GCMCA, Commanding General, 1st Marine Division (Reinforced), directed the Applicant's under other than honorable conditions discharge by reason of misconduct due to drug abuse.

970718:	Applicant voluntarily agreed to remain on active duty until 970814.

970814:	SJA review determined the case sufficient in law and fact.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970814 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was improper (B).

The Applicant enlisted on 19930608 for a period of four years, thus establishing an expiration of active service obligation (EAOS) of 19970607, which was subsequently extended to 19970622 due to nine days of unauthorized absence and six days of lost time due to confinement.  The Applicant was notified of his Commanding Officer’s intention to administratively separate the Applicant on 19970710.  The discharge was directed on 19970717 and became effective on 19970814.  Regulations prohibit holding a member beyond the expiration of active service obligation for processing due to misconduct.   Since the Applicant was not processed for administrative separation prior to his release from confinement on 19970707, he should have been discharged by reason of expiration of active service upon his release from confinement.  Because the Board found the Applicant’s voluntary extension on 19970718 to have occurred after the Applicant should have already been discharged, the Board found the Applicant’s agreement to extend his enlistment to be suspect.  As such, the Board voted to change the Applicant’s narrative reason for separation to “Expiration of Active Service Obligation.”  In considering the characterization, the Board considered the Applicant’s characterization under the context of discharges as a result of expiration of required service.  Under these regulations, explicit instruction indicates that characterization for Marines with proficiency and conduct marks above 3.0/4.0 respectively will be “honorable.”  As such, the Board voted to upgrade the Applicant’s character of service to honorable.  Relief granted.

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 V, Para 502, Propriety.

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