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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-01222

Applicant’s Request

The application for discharge review was received on 20050719.  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 20060302.  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:

“Realization for my action is not only a significant reality now, but it was also one at the time of my separation.  I ask that I may proceed in this society without this blemish.  This episode has been reflected on by others of notable status in our society, only to be waived away in disbelief.  I am not the same young man that error back then, but a man that has gone forward in spite of this error.  I would ask that this may not follow me anymore.”

Documentation

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

Applicant’s DD Form 214  (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19920407 – 19920615		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19920616		Date of Discharge:  19960223

Length of Service (years, months, days):

Active:    03  08  07  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  51

Highest Rank:  Cpl				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (9)				Conduct:  4.0 (9) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Expert Badge (2nd Award), National Defense Service Medal, Sea Service Deployment Ribbon (W/1 Star)

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:

920407:	CG, MCRD waiver, type II authorized.

950517:	NJP for violation of UCMJ, Article 92:
	Specification:  Violation of a lawful order on or about 12 May 1995.
	Award:  Forfeiture of $450.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-3.  Not appealed.

950813:	Director, Substance Abuse Counseling Center, Marine Corps Base Hawaii, discharge recommendation.  The Applicant was evaluated on October 30, 1995 as a result of a command referral.
	Results of the evaluation: DRUG ABUSE.
	This member (Applicant) should be processed for discharge.  
	Recommended:  (1) Monitored attendance at 1 NA meeting per week.
	(2) Weekly meeting with unit SACO.
	(3) SNM should return to SACO to receive VA rights

950825:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 950821, tested positive for THC.

950929:	NJP for violation of UCMJ, Article 112a:
	Specification:  At CoC, 1st Bn, 3dMar on 14 August 95, test positive for THC.
	Award:  Forfeiture of $446.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

951116:	Director, Substance Abuse Counseling Center, Marine Corps Base Hawaii, provides Advisement of VA Rights in the Case of PFC B_ (Applicant).  
	The subject member (Applicant) was evaluated on 30 Oct 1995 in accordance with the references as the result of a command referral.  Results of the evaluation:
a.	No diagnosis/DSM IV:V71.09
b.	Drug Abuse 
The subject named member (Applicant) was briefed on his VA benefits, as they pertain to alcohol/drug treatment.  Member (Applicant) was provided with the address of the nearest Veterans Administration Hospital to his home of record.  Pending discharge no other form of treatment can be provided.  

951211:	Counseling:  Advised of deficiencies in performance and conduct (Misconduct for illegal use of a controlled substance as evidenced by NAVDRLAB msg R 252033Z AUG 95 ZYBPSN 688066H34 for THC.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

951229:	NJP for violation of UCMJ, Article 86:
	Specification:  UA from CoC, 1st Bn, 3d Mar, during the period of 0210 08 December 95 through 0856, 09 December 95.  
Violation of UCMJ Article 111:
Specification:  At CoC, 1st Bn, 3d Mar, operated a motor vehicle while intoxicated as evidenced by SNM’s BAC of .099% on 08 December 1995.
	Award:  Restriction and extra duty for 45 days, reduction to E-1.  Not appealed.

960106:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with characterization of service as under other than honorable conditions.  The factual basis for this recommendation was wrongful use of marijuana.  

960106:	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.

960110:	Commanding Officer, 1st Battalion, 3d Marines, Marine Corps Base, recommended to the Commanding General, Marine Corps Base Hawaii that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was wrongful use of marijuana.  Commanding Officer’s comments:  “The Respondent’s actions clearly indicate unsuitability for future military service, therefore, I recommend that the Respondent be expeditiously discharged.”

960130:	SJA review determined the case sufficient in law and fact.

960131:	Commander, Marine Corps Base Hawaii, advised the Commandant of the Marine Corps, that the Applicant will be discharged 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 19960223 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. 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 3 nonjudicial punishment proceedings for violations of Articles 86, 92, 111 and 112a of the UCMJ.  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 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.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 to 30 Jan 97.

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