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

FOR OFFICIAL USE ONLY

 ex-PFC, USMC
Docket No. MD05-01499

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 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:

“I R_ N_ (Applicant) was discharged other than honorable because I confessed to smoking marijuana when I was accused of it.  There was no sufficient evidence of this.  I was also forced to take urine test soon after I was accused and once a week after, every test came back negative.  I was given the dissection to get out or stay in.  I choose to get out.  The reason I confessed to doing what I was accused of was to get out.  That’s what I choose to do.  I did this because my fiancé at the time was pregnant.  I wanted to be there when my child was born and I knew I wouldn’t want to leave.  If I had to make this dissection over again maybe it would be a different one.  I know it was a bad dissection that’s why I deserve an upgrade.”

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)	19960829 – 19970112		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19970113		Date of Discharge:  19990427

Length of Service (years, months, days):

Active:    02  02  25  (excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  20 days*

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  36

Highest Rank:  LCpl				MOS:  1171

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (6)				Conduct:  4.0 (6) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksman Badge

*  Extracted from DD  214 Block 29, Dates of Time Lost During this period

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:

960823:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

981006:	Naval Criminal Investigative Service Regional Forensic Lab, San Diego, CA, reported marijuana was identified in Item A Log# 0448-98 from case titled “S/N_, R_ T. Jr” [Applicant].

981022:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Oct, Nov, Dec 98 Prom 4th Quarter because of pending court- martial.  Applicant chose not to make a statement.

981203:	Pre-trial agreement:  Applicant agrees to enter a voluntary plea of guilty to charges at a summary court-martial provided the convening authority agrees to withdraw charges against him from pending special court-martial and commence separation proceedings.  Applicant noted he understood that in exchange for withdrawing charges, he agreed to waive his right to an administrative discharge board.

981211:	Summary Court-Martial.
	Charge 1: violation of the UCMJ, Article 112a.
	Specification 1: In that LCpl T. N_, Jr., USMC on active duty, did, at Camp Pendleton, CA, on or about 11 September 1998, wrongfully use marijuana.
	Specification 2:  In that LCpl R_ T. N_, Jr., USMC on active duty, did at Arizona and California from about 4 September 1998 to 11 September 1998, wrongfully posses some amount of marijuana.
	Specification 3:  In that LCpl R_ T. N_, Jr., USMC on active duty, did at Camp Pendleton, CA, on or about 7 September 1998, wrongfully introduce some amount of marijuana onto an installation used by the Armed Forces, to wit:  Marine Corps Base Camp Pendleton.
	Finding: to Charge 1 and the specifications thereunder, guilty.
	Sentence: Forfeiture of $629.00 pay per month for 1 month, 30 days confinement, reduced to E-2.
	CA action 981211.

981230:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl due to recent court-martial.  Applicant chose not to make a statement.

990121:	Refusal of Medical Officers Evaluation ltr stating that PFC N_ (Applicant) was seen by Mr. G_ on 15 Jan 99.  SNM refused to be evaluated by the Medical Officer.  

990323:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the Applicant’s illegal use of marijuana on or about 11 September 98, illegal possession of marijuana from on or about 4 September 98, as well as the Applicant’s introduction of some amount of marijuana onto an installation used by the armed forces.    Applicant informed the least favorable character of service possible is under other than honorable conditions.

990323:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

990323:	Commanding Officer, 1st Maintenance Battalion, recommended to Commanding General, 1st Force Service Support Group, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.  

990423:	SJA review determined the case sufficient in law and fact.

990423:	Commanding General, 1st Force Service Support Group, advised the Commandant of the Marine Corps (MMSB), that 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 19990427 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).

When a Marine’s service 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 summary court-martial conviction for violations of Article 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends he admitted usage for the sole purpose of obtaining a discharge from the Marine Corps and that there was not “sufficient evidence” of his drug abuse.  There is credible evidence in the record that the Applicant used illegal drugs.  Aside from the Applicant’s own admission of drug use, an item recovered from the Applicant tested positive for marijuana and the Applicant was convicted at summary court-martial of 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.    Relief denied.

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 any 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.  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.

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