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

FOR OFFICIAL USE ONLY

 ex-PFC, USMC
Docket No. MD05-01314

Applicant’s Request

The application for discharge review was received on 20050727.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions).  The Applicant requests a personal appearance discharge review before a traveling panel closest to Chicago, IL.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC at the Washington Navy Yard.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060413.  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:

“Issue 1:  My unit was overseas and there was no one available to speak on my behalf.

Issue 2: A few charge sheets have the wrong social security numbers.

Issue 3: Due to my high pros & cons even after my NJP I would have still received a Horn able discharged.

Issue 4: My other than honorable discharge in my view was unfair.  This decision does not reflect my 3 years and 9 months I served as a marine [sic], I served in Operation Iraq freedom, very well behaved marine [sic], and I was very highly motivated.”

Documentation

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

Three pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19990831 - 20000820	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000821		Date of Discharge:  20040520

Length of Service (years, months, days):

Active:    03  09  00
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  43

Highest Rank:  LCPL			MOS:  0621

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (8)				Conduct:  4.1 (8)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  NATO Medal, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon, National Defense Service Medal, Meritorious Unit Commendation, Presidential Unit Citation, Rifle Qualification Badge (Expert), Pistol Qualification Badge (Sharpshooter)

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:

020608:	Counseling:  Advised of deficiencies in performance and conduct (Unauthorized absence from appointed place of duty on 18 May 2002.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020609:	NJP for violation of UCMJ, Article 86: In that LCpl M_(Applicant), did on or about 0730, 18 May 2002, without authority absent himself from his appointed place of duty, to wit: HP 250.
	Award:  Forfeiture of $304 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

031212:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 031209, tested positive for THC.

040113:	Commanding Officer, Headquarters and Service Company, 2d Battalion, 2d Marines, recommended Applicant be separated from the Marine Corps.

040121:	Counseling:  Advised of deficiencies in performance and conduct (Illegal drugs involvement, to wit: marijuana usage), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

040123:	NJP for violation of UCMJ, Article 112a: SNM, at a unknown location, on or about 23 Dec 03, wrongfully used a illegal substance to wit: marijuana.
	Award:  Not found in service record.

040206:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Applicant informed the least favorable character of service possible was under other than honorable conditions.

040206:	Applicant advised of rights and having elected not to consult with counsel, elected to appear before an Administrative Discharge Board.

040212:	Applicant signed statement of understanding for substance abuse at Veterans Administration Medical Center.

040217:	Substance abuse evaluation:  No diagnosis.  Recommendations:  Outpatient treatment, remain abstinent from use of all substances.

040422:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

040226:	Commanding Officer, 2d Battalion, 2d Marines, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was respondent’s illegal drug use as evidence by Navy Drug Lab message 121127Z Dec 03.  Commanding Officer’s comments:  “I have personally interviewed Private First Class M_(Applicant) and although he shows remorse for his actions the Marine Corps policy on the issue is very clear.  Private First Class M_(Applicant) performance is best defined as inconsistent, however, since testing positive for THC he requires constant supervision.  Based upon the information contained in the enclosures I recommend that the respondent be administratively separated from the Marine Corps with an under other than honorable characterization of service.  Retention of the respondent would adversely affect the morale, discipline, and military effectiveness of this organization.”

040506:	SJA review determined the case sufficient in law and fact.

040507:	GCMCA, Commander, 2d Marine Division, II Marine Expeditionary Force, 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 20040520 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 Board presumed regularity in the conduct of governmental affairs (D).

Issues 3, 4.  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.  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 nonjudicial punishment proceedings for violations of Articles 86 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.

Issue 1.  The Applicant contends that his unit was overseas and that there was no one available to “speak on his behalf.”  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his administrative separation, to include his administrative discharge board, was improper or inequitable.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  However, even if the Applicant could show that his command was unavailable to participate in his Administrative Discharge Board proceedings, it would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  Relief denied.  

Issue 2.  The Applicant states, “A few charge sheets have the wrong social security numbers.”  Because the Applicant did not identify this issue as an issue of propriety, the Board evaluated the Applicant’s issue on the merits of equity and found the Applicant’s issue without merit.  The Applicant was discharged by reason of misconduct due to drug abuse.  The Applicant was awarded nonjudicial punishment for violating Article 112a of the UCMJ.    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.

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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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