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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD05-01492

Applicant’s Request

The application for discharge review was received on 20050908.  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 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:

“I now have a family and would like to use partial Benefits for my family”

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)	19930429 - 19930503	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19930504		Date of Discharge:  19960415

Length of Service (years, months, days):

Active:    02  11  12
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4

Education Level:  12				AFQT:  40

Highest Rank:  PFC				MOS:  3531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (8)				Conduct:  4.2 (8)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  DD Form 214 was not contained in the records.

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:

930420:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

940510:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for July 94, due to recent infractions of the UCMJ.  Applicant chose not to make a statement.

940526:	NJP for violation of UCMJ, Article 92 (2 specs):
	Specification 1: In that PFC C. R. B_(Applicant), did, at Bldg 217, Camp Foster, Okinawa, JA, at 0035, on or about 22 May 1994, fail to obey a lawful order, to wit: RegtO P11000.1 dtd 5 Sep 1989, by wrongfully escorting a female guest into the BEQ (Bldg 217) after visiting hours (2200).
	Specification 2: In that PFC C. R. B_(Applicant), did, at Bldg 217, Camp Foster, Okinawa, JA, at 0035, on or about 22 May 1994, violate a lawful order from the CO, HQBTRY, 12th Marines, by wrongfully entering Bldg 217 through the fire exit door.
Violation of UCMJ, Article 95: In that PFC C. R. B_(Applicant), did on board Camp Foster, Okinawa, JA, at 0035, on or about 22 May 1994, attempt to elude Military Police.
	Award:  Forfeiture of $217 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in service record.

941012:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of October 1994 because of recent NJP.  Applicant chose not to make a statement.

941104:	NJP for violation of UCMJ, Article 108: In that PFC C. R. B_(Applicant), did at Bks 217, Rm 205 on board Camp Foster, Okinawa, JA, on or about 10 October 1994, without proper authority, willfully damaged military property of the United States, by putting a hole in the wall and tore a lamp shade.  The amount of said damage is undetermined.
	Award:  Forfeiture of $200 per month for 2 months, restriction for 60 days, reduction to E-1 and Level III treatment in 6 weeks.  Not appealed.

950113:	Counseling:  Advised of deficiencies in performance and conduct (That on 950112 while a passenger in a car at a traffic light adjacent to SgtMaj C_, the Applicant raised his middle finger at SgtMaj C_ twice.  Applicant’s conduct was the result of alcohol consumption.  This is the first incident after completion of Level III.  Conduct of this nature will not be tolerated.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950223:	Counseling:  Advised of deficiencies in performance and conduct (Frequent involvement with military authorities that has resulted in two NJP’s and one page 11 entry.  Applicant has continually failed to maintain self according to the rules and regulations of the UCMJ.), necessary corrective actions explained, sources of assistance provided.

950517:	Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of June 1995 because of drinking problem.  Applicant chose not to make a statement.

950522:	Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of July 1995 because of alcohol abuse.  Applicant chose not to make a statement.

951213:	NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 951127, tested positive for THC.

960126:	NJP for violation of UCMJ, Article 112a: In that PFC B_(Applicant) did at HQSVCCO Barracks, HQBN, HQMC, HH, ARLVA on or about 951127 wrongfully use marijuana.
	Violation of UCMJ, Article 112a: In that PFC B_(Applicant) did at HQSVCCO Barracks, HQBN, HQMC on or about 951127 wrongfully have in his possession a marijuana cigarette.
	Award:  Forfeiture of $200 per month for 2 months, restriction for 30 days, reduction to E-1.  Not appealed.

960130:	Counseling:  Advised of deficiencies in performance and conduct (Illegal drug involvement; specifically usage of THC as identified through urinalysis testing, by DOD Lab #634868 and revocation of government license OF346 in accordance with TM11240-1563B for illegal use of marijuana.), necessary corrective actions explained and sources of assistance provided.  Applicant advised Admin Separation will be initiated.

960209:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse and a pattern of misconduct.  The factual basis for this recommendation was Applicant’s confirmed use of a controlled substance, specifically, Tetrahydrocannanbinol (THC) and instances of conduct prejudicial to good order and discipline.

960212:	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.

960215:	Substance Abuse Counselor referred Applicant to medical officer for evaluation due to testing positive for THC on a urinalysis.

960223:	Medical Evaluation by M_ E. S_, LT, MC, USNR:  Applicant diagnosed as THC abuse.  Applicant does not meet the criteria of drug dependence.  Continue with Administrative Separation.  Applicant advised to go to AA after separation.

960226:	Commanding Officer, Headquarters and Service Company, recommended via Commanding Officer, Headquarters Battalion, Headquarters, U.S. Marine Corps, Henderson Hall, Arlington, VA, the Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse and a pattern of misconduct.  Commanding Officer’s comments:  “Private B_(Applicant) has previously received two negative Pg 11 counseling entries:  one for improper conduct while on liberty, and one for frequent involvement with military authorities. He also received nonjudicial punishment on three occasions: on 27 May 1995 for failure to obey a lawful order, on 7 November 1994 for willfully damaging military property, and 26 January 1996 for use of Tetrahydrocannabinol (THC).
Private B_(Applicant) has chosen to disregard both the Marine Corps policy on illegal drug use and possession and the Uniform Code of Military Justice.  As a motor vehicle operator, he can no longer be trusted with the safety of others and he has been removed from all driving responsibilities.  Due to his use of THC and his frequent discreditable involvement with military authorities, it is strongly recommended that Private B_(Applicant) be expeditiously separated from the Naval Service with an other than honorable discharge.”

960306:	Commanding Officer, Headquarters Battalion, Headquarters, U.S. Marine Corps, Henderson Hall, Arlington, VA, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse and a pattern of misconduct.

960325:	SJA review determined the case sufficient in law and fact.

960408:	GCMCA, Commanding General, Marine Corps Base, Marine Corps Combat Development Command, Quantico, Virginia directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse.  For reporting purposes, “misconduct/drug abuse” is designated as the primary reason for separation.

960415:	DD Form 215: Applicant discharged 960415.

Service Record did not contain DD Form 214.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960415 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).

While the Applicant’s military service records and complete discharge package were available to the Board for analysis, it did not contain a copy of his DD Form 214.  In lieu of the DD Form 214, the Board presumed the information contained in the available records to be accurate.

Whenever a Marine is involved in misconduct due to drug abuse, on the first offense, commanders shall process the Marine for administrative separation.  There is clear evidence in the Applicant’s service record that he used and possessed illegal drugs.  Indeed, the Applicant received nonjudicial punishment on 19960126 for violation of UCMJ Article 112a (2 specifications) Wrongful use and possession of controlled substance (marijuana).  Evidence of such misconduct may be used to characterize a Marine’s discharge as under other than honorable conditions.

Characterization of service as under other than honorable conditions 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.  In addition to the aforementioned nonjudicial punishment proceedings, the Applicant’s records contain 2 other nonjudicial punishment proceedings for violation of UCMJ Article 92 (2 specifications) Failure to obey order, regulation; Article 95 Resisting apprehension; and Article 108 Military property damage.  This conduct, which forms the primary basis for determining the character of his service, falls well below that required for an upgrade in characterization of service.  Relief not warranted.

The Applicant desires a discharge upgrade in order to receive benefits for his family.  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 or enhancing employment opportunities.  These issues do not serve to provide a foundation upon which the Board can grant relief.  Therefore relief on this basis is denied.

The following is provided for the Applicant’s edification.  The Board 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.  Evidence of continuing educational pursuits, verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct.  Since the Applicant did not provide any post-service documentation for consideration, 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 post-service accomplishments or any other evidence related to the 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 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.

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