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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD05-01196

Applicant’s Request

The application for discharge review was received on 20050706.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to General/Under Honorable Conditions and that the Narrative Reason for Separation be changed to “EOS.”  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 designated a civilian attorney as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060131.  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 and the reason for 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

Issues submitted by Applicant and counsel (civilian counsel):

“The positive aspects of the Applicant’s military service, including his dedicated and faithful performance as a Marine Rifleman in support of combat operations in Iraq outweigh the negative aspects of his conduct and performance which resulted in his OTH separation.  Based upon his overall service record the OTH separation was unwarranted and inequitable.

Applicant’s Remarks:  (Taken from the DD Form 293.)

See Letter Brief of Counsel which is incorporated by reference herein

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Letter from Applicant’s attorney, dtd June 27, 2005
Summary of Applicant’s service record (4 pages)
Argument (2 pages), dtd June 27, 2005
Character reference ltr from P_ N_, dtd June 3, 2005
Character reference ltr from E_ H. P_, dtd June 9, 2005
Character reference ltr from S_ M_, undtd
Character reference ltr from C_ T_, dtd June 3, 2005
Letter from Hampton Counseling Center, dtd June 9, 2005
Hampton Counseling Center Comprehensive Forensic/Clinical/Psychological Evaluation, 	dtd June 13, 2005 (12 pages)
Letter from Applicant’s attorney, dtd November 22, 2005
Letter from Department of Veterans Affairs, Administrative Decision, dtd October 11, 	2005 (2 pages)
Department of Veterans Affairs rating decision, dtd November 3, 2005 (5 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20020717 - 20020828	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020805		Date of Discharge:  20031222

Length of Service (years, months, days):

Active:    01  04  17  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  24 days

Age at Entry:  19

Years Contracted:  4

Education Level:  12			AFQT:  36

Highest Rank:  LCpl				MOS:  0331

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (3)				Conduct:  3.1 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Combat Action Ribbon, National Defense Service Medal, Presidential Unit Citation, Rifle Qualification Badge (Marksman)

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:

020603:	Applicant disqualified for military service as a result of recent medical examination at the Military Entrance Processing Station.  A urine test taken as part of the Applicant’s medical examination to determine the Applicant’s eligibility showed a disqualifying amount of marijuana in the Applicant’s urine at that time.  To make sure, a second test was conducted on the same specimen and obtained disqualifying results.  Applicant is disqualified for 45 days because of marijuana use at the time of examination.

020715:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

020717:	Pre-service waiver granted.

030627:	NJP for violation of UCMJ, Article 121: In that SNM, did, on board USS KEARSARGE, Kilo Company Berthing, 3d Battalion 2d Marines, on or about 030622, 1200, wrongfully steal a bottle of protein, of a value of $80.00, the property of Cpl H_, Cpl F_ and Sgt M_.
	Award:  Forfeiture of $316 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

030628:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Art 121 in that Applicant took a bottle of Pro Lab Whey protein drink mix belonging to Corporal H_ and Sergeant M_.  Applicant’s actions are an indication of lack of judgment, integrity, maturity, dependability, and leadership ability.  Conduct of this type is unacceptable and will not be tolerated.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030828:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 030826, tested positive for THC.

030926:	Summary Court-Martial.
	Charge: violation of the UCMJ, Article 112a:
	Specification: Wrongful use of THC (marijuana).
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $767.00, confinement for 30 days.
	CA action 030926:  Sentence approved and ordered executed.

031020:	Counseling:  Advised of deficiencies in performance and conduct (Illegal drug involvement. (THC identified through urinalysis confirmed by Navy Drug Lab JAZFL msg 281148Z Aug 03).), necessary corrective actions explained.  Seen by substance abuse counselor on 030919.

031020:	Counseled this date concerning administrative proceedings.  Advised that he is being processed for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

031020:	Counseling:  Advised of deficiencies in performance and conduct (Refusal of treatment for substance abuse IAW the provisions of MCO P1900.16C, MCO P1700.24B, and OPNAVINST 5350.4C on 031020.  Applicant understands that if treatment is desired after discharge that is the Applicant’s responsibility to contact local Veteran’s Administration representative.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

031020:	Substance Abuse Rehabilitation Program, Naval Hospital Camp Lejeune North Carolina.  Applicant refused treatment for substance abuse.  Applicant counseled in regards to treatment at a Veterans Administration Medical Center (VAMC) for his substance abuse problem.  Applicant provided with contact information of VAMC near his residence upon discharge.

031020:	Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of December and will not be recommended for promotion for 18 month from the date of 28 August 2003.  Applicant chose not to make a statement.

031121:	Applicant notified of intended recommendation for discharge with an under other than honorable characterization of service.  The factual basis for this recommendation was the use of an illegal drug, THC, a controlled substance

031121:	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.
031121:	Commanding Officer, 3d Battalion 2d Marines recommended Applicant’s discharge under other than honorable conditions under paragraph 6210.5 of the reference (drug abuse).    Commanding Officer’s comments:  “Private V_(Applicant) has served in this battalion since 10 January 2003.  During his ten months of service he has been the subject of a nonjudicial punishment on 27 June 2003 for a violation of article 121 (larceny) and a summary court-martial on 26 September 2003 for a violation of article 112a (wrongful use of a controlled substance).  Based on his demonstrated trend of substandard conduct and illegal drug use, I believe it is in the best interest of the Marine Corps to separate Private V_(Applicant) at the earliest opportunity with an other than honorable characterization of service.” 

031211:	SJA review determined the case sufficient in law and fact.

031215:	GCMCA, Commanding General, 4th Marine Expeditionary Brigade (AT), 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 20031222 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).  

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, thus substantiating the misconduct for which he was separated.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

When the service of a member of the U.S. Marine Corps 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 a retention warning and nonjudicial punishment proceedings for violation of Article 121 (larceny) of the UCMJ.  In addition, the Applicant plead guilty to a violation of Article 112a (wrongful use of a controlled substance) at a summary court-martial.  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. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The following is provided for the edification of the Applicant.  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 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 Naval service.  The NDRB 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  Relief denied.

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 additional evidence related to this 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