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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-01004

Applicant’s Request

The application for discharge review was received on 20050525.  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 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 by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I know what I did was wrong and the biggest mistake, but I want to do things right and have a second chance by serving for my country Honorable.”

Documentation

Only the service record book was reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20010712 – 20010722		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010723		Date of Discharge:  20040630

Length of Service (years, months, days):

Active:    02  11  08  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  24 days

Age at Entry:  20 

Years Contracted:  4 

Education Level:  12				AFQT:  46

Highest Rank:  LCpl				MOS:  3381

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (7)			Conduct:  3.2 (7)

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

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:

010710:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

020107:	Detachment NJP for violation of UCMJ, Article 86: In that SNM was on or about 1215/020110 UA from his appointed place of duty at large garrison messhall and did remain so until 1620/020110.
Violation of UCMJ, Article 92: At MCD,Ft Lee, VA. In that SNM did 020110 disobey a direct order to go to the dining facility to eat chow and then report to large garrison messhall for training, SNM did not show up at large garrison, his appointed place of duty.
	Award:  Forfeiture of $100 per month for 1 month, restriction for 21 days, reduction to E-1.  Reduction to E-1 and forfeiture or $50.00 suspended for 6 months, at which time unless sooner vacated, will be remitted without further action.  Not appealed.

020114:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Article 86, at MCD, Ft Lee, VA, in that you were on or about 1215/020110 UA from your appointed place of duty at large garrison messhall and did remain so until 1620/020110.  Violation of Article 92, at MCD, Ft Lee, VA. In that you did 020110 disobey a direct order to go to the dining  facility to eat chow and then report to large garrison messhall for training, you did not show up at large garrison, your appointed place of duty.)  Necessary corrective actions explained, sources of assistance provided, and disciplinary and discharge warning issued.

030203:	Counseling:  Advised of deficiencies in performance and conduct (Violation of a Lawful Order, specifically, on or about 030118 at 2200, you violated MCO P1020.34 by having a tongue ring in your mouth).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030203:	Battalion NJP for violation of UCMJ, Article 92: LCpl W_ did, on or about 030108 at 2200, violate MCO P1020.34 by having a tongue ring in his mouth.
Award:  Forfeiture of $500 per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days (38 days suspended for 6 months), reduction to E-2.  Not appealed.

040114:	NAVDRUGLAB, San Diego, CA, Report of Urine Sample: Applicant’s urine sample, received 040107, tested positive for cocaine.  

040210:	Consolidated Substance Abuse Counseling Center, Camp Pendleton, CA: Applicant refused medical officer’s evaluation.  Applicant scheduled to attend Marine Drug Awareness Course (MDAC).  Applicant advised of toll free number to locate VA Treatment Facility nearest his place of residence.

040218:	Summary Court-Martial.
	Charge: violation of the UCMJ, Article 112a:
	Specification: In that LCpl D_ A. W_, did, on or about 031231 wrongfully use cocaine. 
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $795.00, reduced to E-1, 30 days confinement.
	CA action 040304:  Sentence approved and ordered executed.

040228:	Counseling:  Advised of deficiencies in performance and conduct (Concerning my illegal drug involvement-cocaine usage on or about 7 January 2004, as identified through urinalysis, and confirmed by NavDrugLab San Diego msg # R 141532Z JAN 04 ZYB), necessary corrective actions explained, sources of assistance provided.  Advised that processing for administrative separation is mandatory.

040524:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of illegal drug abuse and pattern of misconduct.  The factual basis for this recommendation was illegal drug abuse is a positive drug message NAVRUBLAB SAN DIEGON CA R 141532 JAN 04 ZYB.  The basis for the pattern of misconduct is one page 11 entry on 14 January 02 for violation of the UCMJ Article 86 and 92 and one summary court-martial on 18 February 04 for violation of the UCMJ Article 1112.  

040524:	Applicant advised of rights and having elected to consult counsel, elected to waive all rights except the right to include written statement in rebuttal to this proposed separation.

040524:	Commanding Officer, 1st Combat Engineer Battalion, recommended to Commanding General, 1st Marine Division (Rein), Camp Pendleton, CA, the Applicant’s discharge with an under other than honorable conditions by reason of the use of illegal drugs and a pattern.  Commanding Officer’s comment: “Private W_’s (Applicant) serious breach of trust displayed through his use of illegal drugs limits his further beneficial service to our Corps, fully warranting his separation.”

040624:	SJA review determined the case sufficient in law and fact.

040625:	GCMCA, Commanding General, Marine Corps Base, Camp Pendleton informed the Commandant of the Marine Corps (MMSB-20) that the Applicant was directed discharge with an 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 20040630 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 proper and equitable (B and C).

The Applicant admits wrongdoing and desires another chance to do things right by honorably serving his country.  While the Board respects the Applicant’s desire to make things right, it is worth reminding the Applicant of his record of service, which precipitated his separation.  The Applicant’s record is marred with the following negative aspects:
•	Non-judicial punishment proceedings on 20020107 for violation of UCMJ Article 86 Unauthorized absence and Article 92 Disobey a direct order;
•	Retention warning entry on 20020114 for deficiencies in performance and conduct concerning violations of Article 86 and 92;
•	Retention warning entry on 20030203 for deficiencies in performance and conduct concerning violation of a lawful order;
•	Non-judicial punishment on 20030203 for violation of UCMJ Article 92 Disobey an order by having a tongue ring in your mouth;
•	Summary Court-Martial conviction on 20040218 for violation of Article 112a Wrongful use of cocaine, a controlled substance; and
•	Counseling entry on 20040228 for deficiencies in performance and conduct concerning violation of Article 112a and mandatory administrative separation action.
These negative aspects served to inform the characterization of under other than honorable conditions, which the Applicant received.  An upgrade based on the desire for a second is inappropriate and is therefore denied.

The Board recognizes the Applicant’s desire to serve his country; however, the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Since this issue does not serve to provide a foundation upon which the Board can grant relief, relief is denied.

The following is provided for the Applicant’s edification.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question, but the Board found no such impropriety or inequity.  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.  Evidence of continuing educational pursuits, verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant did not provided any post-service documentation for consideration.  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.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 
01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.

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.

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