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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD05-01232

Applicant’s Request

The application for discharge review was received on 20050712.  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 20060531.  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 to the Board:

“Change of Discharge is needed for GI Bill.  I was injured and ordered by doctors to return to school (college) and never again be a mechanic.  So I enrolled At Delta College and am pursuing a BA in Business, and paying Doctors Bills at the same time.  I will not use any other VA Benefits offered to an Honorably Discharged Marine i.e. (Home loans, Disability, etc) only the GI Bill, which I paid $1200 for.  After my early Discharge I continued working for DOD USMC through General Dynamics for over 1 year where I was an M1A1 Sr Tech/Instructor 5th echelon main.  Sept 11 ended that contract & I went to work for ITT Systems Middle East and was at Camp Arifjan from Feb 03 – July 03. My Discharge was brought on by the “zero tolerance rule.”  I failed only 1 urinalysis & went before my commanding Officer & told him about the day in question How I hadn’t drank that much & felt real funny like I was drugged.  The club that it happened in was later banned as “off limit establishment” because marines were being drugged there.  Drugs slipped into drinks.”

Applicant’s Remarks:  Taken from the DD Form 293 letter to the Board:

“I know to ask for this change is a Huge request.  I always trained Hard & played Hard but I did all of this “smart.”  I say again at no time did I ever willing take, use or handle any Drugs while I was enlisted in the Marines.  I was an excellent Marine During my career and never wanted to leave, especially early.  I need this GI Bill to further my education 
THANK you for your time.”

Documentation

Only the service record book and medical record were 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)	19960208 - 19960908		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19960909		Date of Discharge:  19990917

Length of Service (years, months, days):

Active:    03  00  09  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  77

Highest Rank:  LCpl				MOS:  2146

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (6) 			 	Conduct:  4.3 (6) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksmanship Badge, Pistol Sharpshooter Badge, Sea Service Deployment Ribbon, Armed Forces 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:

960207:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

980203:	NJP for violation of UCMJ, Article 92:
Specification:  At MCB, CLNC, o/a 0050, 980116, violated MCO P1020.34F by wearing diamond stud earring in his left ear.
	Award:  Restriction and extra duty for 14 days.  Not appealed.

981014:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Nov 98 1st Quarter because of failure to follow simple instructing displays an inability to abide by Marine Corps orders, regulations and local command policies.  Applicant chose not to make a statement.

990125:	Counseling:  Advised of deficiencies in performance and conduct (MSSG-22 had been notified on a returned check DTD 981126 for the amount of $60.00 for non-sufficient funds from Marine Federal Credit Unit.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990309:	NJP for violation of UCMJ, Article 92:  Disobey a lawful written order; violation of UCMJ, Article 117: Wrongfully used reproachful words to LCPL H_; violation of UCMJ, Article 134:  Communicated a statement to LCPL H_ which was prejudicial to the good order and discipline of the armed forces.
	Award:  Forfeiture of $537.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

990310:	Counseling:  Advised of deficiencies in performance and conduct (Making offensive racial statements i.e. “N---- B----, That’s jew, we got jewed!”), necessary corrective actions explained, sources of assistance provided, disciplinary and warning issued.

990326:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of April, 1999 promotion period because of pending NJP.  Applicant chose not to make a statement.

990326:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl. for the month of April, May, June quarter 1999 because of recent NJP.  Applicant chose not to make a statement.

990412:	Applicant notified of intended recommendation for discharge by reason of a pattern of misconduct with a characterization of under other than honorable conditions.  

990412:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

990414:	Commanding Officer, MEU Service Support Group 22, 22d Marine Expeditionary, recommended to Commanding General, 2d Force Service Support Group, via the Commanding Officer, 2d Maintenance Battalion, that the Applicant be discharged under other than honorable conditions by reason of a pattern of misconduct.  The factual basis for this recommendation was based on a pattern of misconduct as illustrated by page 11 counseling’s on 14 October 1998, 25 January 1999, 10 March 1999 and his NJPs on 3 February 1998 and 10 March 1999.  Commanding Officer’s comments:  “It is recommended that the subject Marine be discharged from the Marine Corps by reason of a pattern of misconduct.  This Marine has established a very clear pattern of misconduct, to include:  NJP, Art. 92, February 1998, wearing an earring; NJP, Art. 92, March 1999, use of racial slurs and offensive language; p.11, October 1998, failure to follows order; p.11, January 1999, worthless check; p.11, March 1999, racist comments; pg. 11, March 1999, not recommended for promotion.  The recommendation of his seniors equivocate.  He is good in his MOS and he achieves assigned tasks with supervision, but he has been unreliable as a “Whole Marine.”  He has been given several opportunities to demonstrate maturity, but despite the formal counseling above and frequent informal counseling’s by his NCOs, LCpl S_ (Applicant) continues to regress to various marginal or worse behaviors.  He should absolutely be separated from the service.  Although none of his offenses are criminal, they are certainly not honorable.” 

990521:	Commanding Officer, 2d Maintenance Battalion, endorsement of the CO, MSSG 22 letter of 14 Apr 99, forwarded, recommending administrative separation. 

990614:	SJA review determined the case sufficient in law and fact.

990625:	Commanding General, 2d Force Service Support Group, directed to the Commanding Officer, 2d Maintenance Battalion, 2d Force Service Support Group that the Applicant be discharged by reason of misconduct due to a pattern of misconduct.  The foregoing proceedings are approved.  However, pursuant to paragraph 6310.1a of the reference, the discharge under Other Than Honorable conditions will be suspended for a period of twelve months.  If during the period of suspension, further grounds for separation arise or respondent fails to meet appropriate standards of conduct and performance, notify the Staff Judge Advocate, 2d Force Service Support Group, to initiate vacation proceedings.

990809:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 990721, tested positive for MDA, MDMA.

990818:	NJP for violation of UCMJ, Article 112a:
	Specification:  In that PFC S_ (Applicant) did on or about 990715, wrongfully use a controlled substance to wit: MDA (methylenedioxy amphetamine) also known as ecstasy.
Award:  Forfeiture of ½ pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Not appealed.

990819:	Commanding Officer, 2d Maintenance Battalion notified the Applicant of the recommendation to the Commander, 2d Force Service support Group, that the Applicant’s Other Than Honorable Conditions Discharge, that was suspended for one year, be vacated and ordered executed.

990819:	Applicant advised of rights and having consulted with a judge advocate or other qualified counsel, elected not to include written statements to the Commander, 2d force Service Support Group in rebuttal to request to vacate the suspended Other Than Honorable Conditions Discharge.

990824:	Commanding Officer, 2d Maintenance Battalion, recommended to the Commander, 2d Force Service Support Group that the Applicant’s Under Other Than Honorable Conditions discharge be vacated based on subsequent misconduct in the form of illegal drug use in violation of Article 112a evidenced by NAVDRUGLAB JACKSONVILLE FL 092023Z Aug 99.

UNDATED:	SJA review of recommendation to vacate the suspended administrative separation, determined the case sufficient in law and fact.

990913:	Commander, 2d Force Service Support Group advised the Commandant of the Marine Corps (MMSB) that the Applicant’s suspended administrative separation dated 25 Jun 99 is now vacated due to further misconduct.  The Applicant will be discharged 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 19990917 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 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.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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.  On 19990625, the CGMCA directed the Applicant’s discharge by reason of a pattern of misconduct with a characterization of under other than honorable conditions.  At that time the Applicant’s service was marred by 2  nonjudicial punishment proceedings for violations of Articles 92 (2 specifications), 117 and 134 of the UCMJ.  In addition, the Applicant had received 2 retention warnings and was not recommended for promotion on 3 occasions.  The GCMCA, suspended the Applicant’s discharge for a period of twelve months.  Less than 2 months later, the Applicant was subject to an additional nonjudicial punishment proceeding for violation of Article 112a (wrongful use of controlled substances), which occurred after his discharge had been suspended. The Applicant’s continued misconduct resulted in the recommendation to vacate his suspended administrative discharge and his subsequent discharge for drug abuse.  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 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