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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD05-01042

Applicant’s Request

The application for discharge review was received on 20050526.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051020.  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 feel that it is an injustice to suffer the adverse consequences of an Other than Honorable Discharge and Clemency is warranted.  It is also wrong for me to suffer, because I served in Iraq and put my own life at risk just like everybody else that is there.”

Applicant’s Remarks:  (From DD Form 293.)

“Thank you for your time, and I hope your decision will be in my favor.”

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20020429 - 20021006	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20021007		Date of Discharge:  20040701

Length of Service (years, months, days):

Active:    01  08  25
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  49

Highest Rank:  LCpl				MOS:  1371

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (5)				Conduct:  3.9 (5)

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

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:	Drug and alcohol test positive waiver granted.

040220:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 040217, tested positive for THC.

040324:	Applicant screened for substance abuse.  Applicant fit criteria for alcohol abuse.  Applicant did not meet criteria for cannabis abuse or dependency.  

040405:	Applicant to outpatient substance abuse treatment program.

040421:	Applicant successfully completed substance abuse treatment.

040430:	Summary Court-Martial.
	Charge: violation of the UCMJ, Article 112a:
	Specification: Wrongfully used marijuana on or about 07 Jan 2004 and on or about 7 Feb 2004.
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Restriction and extra duty for 45 days, reduction to E-1.
	CA action 040510:  Sentence approved and ordered executed.

040521:	Counseling:  Advised of deficiencies in performance and conduct (Drug abuse of marijuana as substantiated by NAVDRUGLAB msg 201848Z Feb04.), necessary corrective actions explained, sources of assistance provided and advised being processed for administrative discharge action.

040521:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of drug abuse.  The factual basis for this recommendation was a NAVDRUGLAB message.  The least favorable character of service possible is under other than honorable conditions.

040521:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

040526:	Commanding Officer, Marine Wing Support Squadron 274, recommended, via Commanding Officer, Marine Wing Support Group 27,  Applicant’s under other than honorable conditions discharge by reason of drug abuse specifically, marijuana.  [Date extracted from Commanding Officer, Marine Wing Support Group 27 letter dated 040604.]

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

040624:	GCMCA, Commanding General, 2d Marine Aircraft Wing, directed the Applicant's discharge 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 20040701 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 contends that his discharge is inequitable because he served in Iraq.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by a summary court-martial conviction for illegal drug use.  Mandatory processing for separation is required for Marines who abuse illegal drugs.  The Applicant’s drug use is considered a violation of the special consideration given in the form of a positive drug and alcohol waiver.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant contends that it is “an injustice to suffer the adverse consequences” of an under other than honorable conditions character of service.  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 requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief on this basis is not appropriate.

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.  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