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

FOR OFFICIAL USE ONLY

 ex-PFC, USMC
Docket No. MD05-01154

Applicant’s Request

The application for discharge review was received on 20050701.  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 20051206.  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:

“1. I was wrong for doing what I did but now I need help from the VA office for my existing problem with throat cancer.”

“2. Your concern in this matter will be appreciated.”

Documentation

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

Applicant’s DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19950606 – 19950807		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19950808		Date of Discharge:  19970507

Length of Service (years, months, days):

Active:    01  09  00  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  21

Years Contracted:  4 

Education Level:  12				AFQT:  49

Highest Rank:  LCpl				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (6)			Conduct:  3.3 (6)

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

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:

950531:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

950606:	Pre-service waiver for drugs granted.

961129:	NJP for violation of UCMJ, Article 86:  Was UA at C Co, 1st Bn, 3d Mar.
	Award:  Forfeiture of $237.00 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

961129:	Counseling:  Advised of deficiencies in performance and conduct (Misconduct, for the alcohol related incident that occurred on 961121), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970123:	1st Bn 3rd Mar BAS, Marine Corps Base Hawaii.  Applicant undergoes ETOH evaluation after having been late for work due to ETOH on breath.  No suicide ideation physically fit.
	Diagnosis:  ETOH Abuse.  Applicant only meets 1 criteria for ETOH dependence.  Applicant meets 2 criteria for ETOH abuse; recurrent substance use in hazardous positions, he has repeatedly driven under the influence leading eventually to a DWI Dec 1995.  He does report no further incidents of driving under the influence.  Substance use despite several social problems.
	Recommendation:  Level II Alcohol Rehabilitation.

970307:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 970227, tested positive for cocaine.

970314:	NJP for violation of UCMJ, Article 112a:  Use of illegal drugs (cocaine).
	Award:  Forfeiture of $505.00 per month for 2 months, restriction and extra duty for 30 days, reduction to E-2.  Not appealed.

970314:	Counseling:  Advised of deficiencies in performance and conduct (Misconduct for illegal use of a controlled substance as evidenced by NAVDRUGLAB msg 072037Z Mar), necessary corrective actions explained and sources of assistance provided.  Applicant advised that he would be immediately processed for administrative separation under other than honorable conditions.

970325:	Applicant notified of intended recommendation for discharge with a characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the Applicant’s wrongful use of cocaine.

970325:	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.

970402:	Director, Substance Abuse Counseling Center, Marine Corps Base Hawaii recommended applicant be discharged from the Marine Corps IAW MCO 05300.12A and MCO P1990.16E for drug abuse. 
 
970402:	Director, Substance Abuse Counseling Center, Marine Corps Base Hawaii advised Applicant of VA benefits as they pertain to drug treatment.  Applicant provided with address of nearest Veterans Administration Hospital to his home of record.  Pending discharge, no other form of treatment can be provided.  Applicant signed a VA Statement of Understanding that his diagnosis of Drug Abuse does not entitle him to VA treatment in conjunction with discharge; that treatment is only available to members diagnosed as dependent.

970411:	Commanding Officer, 1st Battalion, 3d Marine recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

970418:	SJA review determined the case sufficient in law and fact.

970422:	GCMCA, Commanding General, Marine Corps Base Hawaii, 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 19970507 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).  

There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for Marines who abuse illegal drugs.  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.

When the service of a member of the U.S. Marines has been honest and faithful, it is appropriate to characterize that service as honorable.  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 2 nonjudicial punishment proceedings for violations of Articles 86 and 112a of the UCMJ.  In addition, the Applicant received a retention warning for an alcohol related incident and was recommended for Level II alcohol rehabilitation.  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 contract with the U.S. Marines and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  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.    Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 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.

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