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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD05-01003

Applicant’s Request

The application for discharge review was received on 20050524.  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 did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006.  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 shall not change.  The discharge shall remain as a Bad Conduct Discharge as a result of a courts-martial (SPCM) – Other.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and from an attached document/letter to the Board:

“(See attached) My discharge was inequitable because it was based on an isolated incident in 2 yrs 8 mos. 28 days of service with no other adverse action.  JV.”

“To Whom It May Concern:

    My name is J_ V_ B_ (Applicant), I am requesting that my Bad Conduct Discharge, from the United States Marine Corps, be upgraded to a General/Under honorable conditions.  The reason I am requesting this upgrade is because I do not want a poor decision that I made when I was a teenager to blemish my record the rest of my life.  I am guilty of the article 112a and plead so in my Special Court-Martial.  I was going through a rough time after losing my father to cancer and I wanted to escape the reality of my sorrow.  I know that there is no excuse for my actions I just made a bad choice.  I was nineteen at the time and a guy in my unit who knew I was depressed offered me some speed (meth), and I took it.  I was not thinking rationally at the time.  I consider myself lucky, because I was just starting to experiment with drugs and was caught.  The Court-Martial and the little time I spent in the brig helped me realize what a big mistake I was making.  I am currently a thirty year old husband and father of two sons.  I haven’t touched a drug since my Court-Martial.  I am a Corrections Officer for the Missouri Department of Corrections.  I have been working in this profession for 2½ years.  I am also a full-time college student working towards a degree in Criminal Justice and am afraid that this blemish to my record will only hinder me from my full potential to be an essential productive member of society and my community.  I have never been arrested for anything in my life, before or after my Court-Martial.  I ask that you take into consideration my accomplishments as a Marine before my Curt-Martial (see attached documents) and my career accomplishments after.  I can’t change the past; if I could I would have used better judgment, I can only control my current and future behavior.  First impressions are very important, especially in the field I work in so I respectfully ask for a second chance.  I thank you in advance for your time spent in considering this request.

Respectfully Submitted, 
[signed] 
J_ E. V_B_ (Applicant)

Applicant’s Remarks:  “See Attached.”  [Letter submitted by Applicant is listed under the Issues, section.]

Documentation

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

Applicant’s DD Form 214 (Member – 4)
Certificate of Completion, Marine Combat Training, dtd April 16, 1993
Certificate of Completion, Infantry Training Battalion Rifleman Course, dtd June 8, 1993
Certificate of Meritorious Promotion, Private Fist Class, dtd June 11, 1993
Certificate of Completion, Survival, Evasion, Resistance, and Escape Training, dtd September 23, 1993
Certificate of Achievement, Close Quarters Battle Course 94-5, (25 Oct – 5 Nov 1993)
Certificate of Completion, Advance Survival, Evasion, Resistance, and Escape Training, dtd November 17, 1993
Certificate of Promotion, Lance Corporal, dtd January 1, 1994
Certificate of Completion, Fundamentals of Marine Corps Leadership, dtd February 16, 1994
Missouri Department of Corrections Training Record (5 pages)
Certificate of Completion, 8 hours of Substance Abuse Awareness Training, dtd November 19, 1993
John Wood Community College transcript issued May 6, 2005
Applicant’s DD Form 214 (Member – 1)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19911223 - 19921206		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19921207		Date of Discharge:  19951019

Length of Service (years, months, days):

Active:    02  08  26  (Excludes lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  48 days

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 

Education Level:  12				AFQT:  62

Highest Rank:  LCpl				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (5) 				Conduct:  4.0 (5) 

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

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

BAD CONDUCT DISCHARGE/As a result of a courts-martial (SPCM) - Other, authority:  MARCORSEPMAN Par. 1105.
 
Chronological Listing of Significant Service Events:

911221:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

911223:	Pre-service waiver for drug granted.  

931201:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of December because of lack of leadership (i.e. poor judgment).  Applicant chose not to make a statement.

940420:	Counseling:  Advised of deficiencies in performance and conduct (failure to adhere to the rules of the UCMJ – violation of article 112a, possession and use of illegal drugs), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940505:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, submitted on 20 APR 94 and received 21 APR 94, tested positive for THC.

940524:	Counseling:  Advised of deficiencies in performance and conduct (failure to adhere to the rules of the UCMJ – violation of article 112a, possession and use of illegal drugs), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940601:	Battalion NJP for violation of UCMJ, Article 112a:  Did, on or about 18 Apr 94, wrongfully use a controlled substance, to wit:  THC, as evidenced in a urinalysis.
	Award:  Forfeiture of $466 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

940606:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was recent nonjudicial punishment that evidenced drug abuse.  

940602:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

940606:	Commanding Officer, 1st Battalion, 4th Marines, 1st Marine Division, recommended via Commanding Officer, 1st Marines, to Commanding General, 1st Marine Division, Applicant’s discharge under other than honorable conditions by reason of misconduct, specifically, drug abuse.  Commanding Officer’s comments:  “Private First Class V_ (Applicant) is being recommended for separation due to his recent marijuana use.  Private First Class V_ (Applicant) enlisted in the Marine Corps with a drug waiver and was made aware of the consequences of future use.  Despite these warnings, he continued to use drugs.  Since he joined this command, his performance has been marginal at best and he has been a disciplinary burden on his chain of command.  Private First Class V_ (Applicant) has been counseled several times for his deficiencies but lacks the ability and desire to correct them.  It is obvious that he does not want to be a Marine.  His behavior shows that he has no respect for the Marine Corps or it’s rules, regulations, and traditions.  This is unacceptable for our Marine Corps.  Private First Class V_ (Applicant) shows no potential for further service.  I strongly recommend that Private First Class V_ (Applicant) be administratively separated with an Other Than Honorable characterization of service.”

940627:	CSACC:  20 year old white male referred due to positive urinalysis for (THC) Cannabis.  Patient appears to meet DSM III criteria for alcohol dependence and drug abuse (no code).  
	Impression:  Alcohol Dependence (303.90) and Drug Abuse (No Code).  Patient appears amenable to treatment.
	Recommendations:  Refer to medical officer for evaluation of drug/alcohol abuse or dependence.  Recommend 3 AA meetings per week until admitted to treatment.  Initiate administrative separation proceedings.  Counseled on VA option and admin process.

940712:	Commanding Officer, 1st Marine advised the Commanding General, 1st Marine Division, concur with the recommendation to separate Applicant for misconduct due to drug abuse and the characterization of service be under other than honorable conditions.  Commanding Officer’s comments:  “Private First Class V_ (Applicant)’s service record includes two 6105 counseling entries and oe NJP for use of marijuana.  Private First Class V_ (Applicant) has demonstrated no remorse or potential for continued military service.”

940713:	Applicant declined enrollment in Veterans’ Administration Drug and Alcohol Program in conjunction with discharge.  Applicant advised of VA Hospital/Facility nearest his home of record.

940808:	SJA review determined the case sufficient in law and fact.

940811:	GCMCA, CG, 1ST Marine Division (Rein), FMF, advised the Commandant of the Marine Corps (MMSB), that Applicant's discharge was directed under other than honorable conditions by reason of misconduct due to drug abuse.

940811:	Medical Eval:  Fit for confinement.  

940928:	Special Court Martial [trial date 940928]
	Charge:  violation of the UCMJ, Article 112a.
	Specification:  Between 20 July 94 and 25 July 94, wrongfully use amphetamine/methamphetamine.
	Findings:  to Charge and specification thereunder, guilty.
	Sentence:  Confinement for 5 months, forfeiture of $300 per month for 3 months, reduction to E-1, Bad Conduct discharge.
	CA 950202:  The sentence approved and, except for bad conduct discharge, ordered executed, but execution of that portion of the sentence adjudging confinement in excess of 60 days is suspended for a period of 12 months from the date of this action at which time, unless sooner vacated, the suspended confinement will be remitted without further action.  The accused will be credited 48 days against the sentence to confinement.  The Base Brig, Marine Corps Base, Camp Pendleton, CA, designated place of confinement.  Pursuant to terms of the pretrial agreement, the deferment of all unexecuted confinement is hereby rescinded effect this date.

940928:	Applicant requested voluntary appellate leave.

941006:	Naval Hospital Camp Pendleton:  Being processed for AdSep secondary to alcohol dependence and drug abuse.  On July 28, 1994 has second positive drug screen, this time for Amphetamines.  Admits to one time Amphetamines use in July 94 – states he snorted them.
	Assessment:  1 – Alcohol dependence.  2 – Drug abuse – not dependent.
	Plan:  Continue with AdSep.

941013:	Voluntary appellate leave approved.

950207:	Applicant to involuntary appellate leave, transferred to the Navy/USMC Appellate Leave activity (NAMALA) Washington, D.C.

950405:	NC&PB clemency not granted; offer VA treatment.

950419:	Applicant offered 30 days inpatient treatment at a VA hospital.  Applicant further advised if no response received within 30 days, it will be assumed that you do not desire treatment or you have moved and failed to keep your address current as required.  Further advised that he did not have to have the treatment, it is your choice.

950719:	NMCCCA:  Affirmed findings and sentence.

950925:	Appellate review completed.

951006:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

Record of Trial for Special Court-Martial did not contain transcripts of proceedings.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19951019 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  The convening and appellate review authorities subsequently approved the sentence (A and B).  After a thorough review of the available 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).

The Applicant contends that his discharge was improper because it was based on one isolated incident.  There is clear evidence in the records that the Applicant used illegal drugs, on more than one occasion.  Indeed, the Applicant’s records contain:
•	Counseling entry on 19940420 for violation of UCMJ, Article 112a Possession and use of illegal drugs;
•	Urine sample submitted on 19940420 tested positive for THC at NAVDRUGLAB, San Diego, CA;
•	Counseling entry on 19940524 for violation of UCMJ, Article 112a Possession and use of illegal drugs;
•	Nonjudicial punishment on 19940601 for wrongful use of a controlled substance; and
•	Special Court-Martial conviction on 19940928 for wrongful use of amphetamine/methamphetamine.
The Board determined that evidence of such misconduct is not one isolated incident.  Nevertheless, the action of the NDRB is restricted to upgrades based on clemency when a discharge is adjudged by a court-martial case.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  After a thorough review of the Applicant’s available records and issues submitted, the Board determined that clemency is not warranted.  The sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Relief is denied.

The Applicant contends that his discharge was inequitable because his wrongful drug uses were youthful indiscretions.  The Board recognizes that serving in the Marine Corps is challenging.  Our country is very 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.  However, the Marine Corps’ position concerning illegal use of drugs is clear: Illegal distribution, possession or use of drugs is not tolerated.  Whenever a Marine is involved in misconduct due to drug abuse, on the first offense, commanders shall process the Marine for administrative separation.  It is noted that the Applicant continued to use illegal drugs even while being processed for administrative separation.  At the same time, there is no evidence, in the records or submitted by the Applicant, which show that the Applicant was not responsible for his conduct or should not be held accountable for his actions.  Relief on this basis is denied.

The Applicant contends that his post service accomplishments warrant an equity upgrade.  While 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  The Applicant claims that he has never been arrested before or after the court-martial; that he has not done drugs since his court-martial; that he has been working as a Corrections Officer for 2-1/2 years; and that he is enrolled as a full time college student.  The Applicant is advised that his efforts need to be more encompassing to include verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  And so, no relief is granted 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 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 950818 until 010831. 

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 and possession of controlled substances.

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