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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD05-01573

Applicant’s Request

The application for discharge review was received on 20050921.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant designated a private representative as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060608.  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 and representative’s issues, as stated on the application and/or from an attached document/letter to the Board:

“Dear Board Members,

As a Veteran Service Officer and Representative for M_ T_(applicant), on his behalf we do hereby submit this letter explaining why we feel that M_ T_(applicant) should be granted an upgrade in his discharge from “Other Than Honorable” to “Honorable.

In December of 1997, M_ T_(applicant) was granted a block leave for the Christmas Holidays.  During that leave he attended a New Year’s Eve party and became intoxicated.  Without him being of sound mind due to his state of intoxication, he ingested an illegal substance.  When he returned to his duty base, he was to be deployed for further training.  His entire company under went a physical and urinalysis.  This physical took place on January 10, 1998.  M_ T_(applicant) continued training with his company from January to March 17, 1998.  On this date (March 17, 1998) M_ T_(applicant) was notified that he had tested positive for substance abuse.

On August 22, 1998 M_ T_(applicant) appeared before Lt. Col. M_ E. D_, in reference to this said charge of substance abuse.  It was recommended by Lt. Col. D_, that M_ T_(applicant) remain in the Marine Corps and his “Other Than Honorable” discharge be vacated for a period of one (1) year.  M_ T_(applicant) is mentioned in all endorsements as being a model Marine, (see statements attached).  M_ T_(applicant) was then placed on a probationary period and did in fact remain in the Marine Corps.  On July 25, 1998 M_ T_(applicant) along with a fellow Marine were granted a liberty pass for a period of twenty-four (24) hours.  Regulations stated that a liberty partner was required.  An incident (fight) broke out in the night club M_ T_(applicant) and his liberty partner were in, and both Marines were separated.  M_ T_(applicant) unable to locate his liberty partner, managed to make his way to Kadena Air Force Base where he sought refuge.  After a few hours, he hailed a taxi back to his Base and signed in without his liberty partner.

Being that he was on a one (1) year probationary period for substance abuse, this incident dampened all chances of being relieved of this said charge and dismissal from the Marine Corps.  M_ T_(applicant) as well as I, think his discharge form the Marine Corps under “OTHER THAN HONORABLE” conditions was a rash and unwarranted punishment.

M_ T_(applicant), according to all endorsements from Officers as well as NCO’s as stated in all the attached endorsements, was a hard charging Marine and would have advanced to a Squad Leader or Platoon Sergeant.  It was stated that he had all the qualities of being a top ranking Marine and had no limit to advancement.  Even though he reported late from liberty, M_ T_(applicant) as well as I, do think that Lt. Col. M_ E. D_, might have reacted over zealously in this instance.  A minor charge of a minimal amount of a late liberty should have been overlooked and a punishment of a lesser degree should have been administered.

M_ T_(applicant) states that he was never brought up before a Board of Review and was not counseled properly.  His rebuttal letter was not transferred to the proper agency.  M_ T_(applicant) states he never signed a waiver to appear before a Board.  We both feel his case should be reviewed by your Board and be given every consideration to have his discharge upgraded to “HONORABLE”.  He is a model citizen, father, husband and is employed as an Auto Mechanic.  Once again, we humbly ask the Board to allow M_ T_(applicant) every consideration and grant him an “HONORABLE” discharge from the United States Marine Corps.

Respectfully,
[signed]
M_ T_(applicant) (social security number deleted)
[signed]
E_ M_, Veteran Service Officer
Mercer County Veteran Services”

Additional issues submitted by Applicant’s counsel/representative (Veteran Service Officer, Mercer County Veteran Services):

“Dear Board Members,

On behalf of my client Mr. M_ T_(applicant), we hereby submit this petition to upgrade his “Other Than Honorable” discharge to “Honorable”.  We have provided all documentation pertaining to the series of events that led to his present status.

The attachments enclosed will present to the Board that Mr. M_ T_(applicant) has been complimented on his tour of duty and his accomplishments numerous times by those in the position of authority.

We are asking for the Board’s compassion in granting Mr. M_ T_(applicant) an “Honorable” discharge.  As you are well aware, he was a model Marine and his advancements were limitless.  To error is human, as all of us at one time or another have made choices that were not becoming of our character.

To this day, Mr. M_ T_(applicant) realizes that the choice he made were not acceptable to the Marine Corps.  However, taking into consideration, his accomplishments in the Marine Corps and civilian life, it would be appreciated if the Board could extend its consideration in granting him his “Honorable” discharge.

Mr. M_ T_(applicant) is truly and completely remorseful for his actions.  He has expressed to me and extends his remorsefulness to the Board in hopes that it will overturn his discharge and grant him his request to be an Honorably discharged Marine. 

With Deepest Respect,
[signed]
E_ M_, Veteran Service Officer
Mercer County Veteran Services”

Documentation

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

Thirteen pages from applicant’s service record
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19970315 - 19970420	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19970421		Date of Discharge:  19981118

Length of Service (years, months, days):

Active:    01  06  28
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  23

Years Contracted:  4

Education Level:  12				AFQT:  59

Highest Rank:  LCpl				MOS:  0341

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (6)				Conduct:  3.5 (6)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Expert Badge (2d Award), Sea Service Deployment Ribbon

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:

970311:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

970314:	Pre-service waiver for serious offense (DDC/MGD) granted.

980123:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 980112, tested positive for cocaine.

980305:	NJP for violation of UCMJ, Article 112a: Wrongful use of the controlled substance, cocaine, as reference referenced by NAVDRUBLAB msg dtd 232049z Jan 98.
	Award:  Forfeiture of $519 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

980313:	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.  The factual basis for this recommendation was violation of Article 112a, as referenced by the NAVDRUGLAB msg dtg R2320492 Jan 98, positive urinalysis for cocaine.  

980313:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

980408:	Applicant signed statement of understanding of treatment for substance abuse at a Veterans Administration Medical Center.

980409:	Substance Abuse Evaluation: Applicant evaluated by a credentialed provider as a result of a command referral.  The diagnosis was drug abuse (isolated incident).

980506:	Commanding Officer, 2d Bn 8th Marines 2d Mar Div via Commanding Officer, 8th Marines recommended to Commanding General, 2d Marine Division Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse and recommended discharge be suspended for one year.  Commanding Officer’s comments:  “5.  In addition to personally interviewing Private First Class T_(applicant), I interviewed his platoon commander, platoon sergeant, section leader, and squad leader and reviewed the platoon commander’s notebook on Private First Class T_(applicant).
	a.  Private First Class T_(applicant) graduated from SOI on 26 September 1997 and reported to this battalion the same day.  His performance throughout his first months was noteworthy; however, upon returning from the Christmas block leave period he was administered a urinalysis and tested positive for cocaine.
b.  Private First Class T_(applicant) was almost 24 years of age when he joined the Marine Corps.  He had worked for eight years prior to enlisting and was preparing to start his own business.  He decided to join the Corps because the military was something that always interested him.  He says he loved boot camp and SOI and wanted to make the Marine Corps a career.  He very much wants to stay in the Marine Corps; he feels he can be a good teacher and a positive influence for younger Marines.  He feels he has something to offer his platoon and has not stopped trying to do his best since this incident.
c.  Private First Class T_(applicant) acknowledges being aware of the Marine Corps’ policy on illegal drug use (he was enlisted with a drug waiver for experimental use of marijuana) but claims this was his first and only use of illegal drugs on active duty.  He makes no excuses, cannot tell anyone why he did it, and says it was no one’s fault but his own.  He takes full responsibility for his illegal use of drugs.  He believes in the Marine Corps’ policy but also believes people make mistakes.
d.  According to Private First Class T_(applicant), his use of cocaine occurred at home during a New Year’s Eve party with his friends.  He says he was intoxicated, and it was a spur of the moment decision.
e.  SNM’s squad leader, Corporal C_, says Private First Class T_(applicant) has good inter-personal skills, and is a natural leader.  The level of performance for the squad triples when SNM is present.  During a recent MCCRE, SNM was attached to another squad and that squad leader gave him rave reviews.
f.  Staff Sergeant H_, SNM’s section leader, says Private First Class T_(applicant) is truly remorseful and is an exemplary Marine.  SNM takes charge during EPD, is always the first to volunteer, and never quits.  SNM is willing to do whatever it takes 24 hours a day, uses his time wisely, and needs no supervision.
g.  Gunnery Sergeant W_, SNM’s platoon sergeant, says he would take Private First Class T_(applicant) to combat and would share a fighting hole with him anytime.  SNM takes missions and orders without blinking.  He says SNM has a lot of heart and concurs 100% with the platoon commander’s comments.
h.  First Lieutenant S_, SNM’s platoon commander, describes SNM’s performance both before and after his drug use as “awesome.” SNM goes the extra mile to help the platoon and continues to demonstrate motivation towards being a Marine.  First Lieutenant S_ sees no evidence of a character flaw and believes SNM is working even harder to prove himself.  He feels SNM is truly remorseful and ‘is a valued member of the platoon.  He gives his strongest recommendation for retention.
6.  Based on the above information, I believe Private First Class T_(applicant)’ illegal use of cocaine was an aberration.  His selection as the battalion’s Marine of the Quarter in December 1997 is reflective of his potential.  Based on the observations and recommendations of his small unit leaders as evidenced by enclosures (6) through (8) and my conversation with them and SNM, I have no doubt that Private First Class T_(applicant) is sincere in his remorse and worthy of retention.  I strongly recommend SNM be given the opportunity to demonstrate his sincerity and determination to salvage his future and accordingly recommend that he be awarded a suspended other than honorable discharge.
7.  Private First Class T_(applicant) has been provided written advice concerning the Purpose and Scope of the Navy Discharge Review Board and the Board for Correction of Naval Records.”

980519:	Applicant found qualified for separation or continued duty.

980520:	Commanding Officer, 8th Marine Regt 2d Mar Div concurs with the Battalion Commanders recommendation that Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse but the discharge be suspended for one year.  Commanding Officer’s comments:  “Private First Class T_(applicant) is an older than average Marine at 24 years old.  He performed exceptionally well upon joining the battalion, being meritoriously promoted to Lance Corporal on 2 December 1997.  He still has the trust and confidence of his leadership in spite of the cocaine use.  He admits using cocaine at a New Years Eve party at a bowling alley when it was offered by a friend.  He knows it was stupid and used this drug without thinking of the consequence.  He is very sincere about obtaining and accepting the responsibility to become a spokeperson against drugs.  Impressive young man who will do well.  Retain.”

980528:	Applicant signed a conditional wavier, waiving right to an administrative board.  [Extracted from Commanding Officer’s letter dated 980905.]

980615:	SJA review determined the case sufficient in law and fact. The battalion and regimental commanders recommended that the Applcant be discharged under other than honorable conditions by reason of misconduct due to drug abuse, however, the commanders recommended that the discharge be suspended for a period of 12 months. The Applicant requested a hearing before an administrative discharge board but has subsequently submitted a conditional waiver in accordance with 6304.5 of the reference.

980618:	GCMCA, Commanding General, 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.  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 from the date of this endorsement.

980618:	Applicant informed of awarded a suspended other than honorable discharge.  Applicant understood any further misconduct may result in vacation of suspension.

980801:	NJP for violation of UCMJ, Article 86: UA(AWOL) from 0900, 980726 to 1230, 980726.
Violation of UCMJ, Article 92:
Spec 1: 1230, 980726 disobeyed lawful order from LtCol D_ by removing himself fr his liberty partner.
Spec 2: Viol MARCORBASESJAPANO 5800.9a by visiting Gate 2 Street, Kadena Air Force Base area during restr hours.
	Award:  Forfeiture of $463 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Not appealed.

980827:	Applicant’s rebuttal letter.

980825:	Commanding Officer’s recommendation for vacation of suspended other than honorable discharge 

980905:	Commanding Officer, 2D Battalion, 8th Marines, 3D Marine Division (-) (Rein), III MEF recommendation for vacation of suspended other than honorable discharge.

980921:	SJA review determined the case sufficient in law and fact.

980924:	Commanding Officer, 4th Marines recommendation for vacation of suspended other than honorable discharge, forwarding concurring with recommendation of the Battalion Commander.

981002:	Commanding General, 3dMarDiv vacated the imposed and suspended discharge of under other than honorable conditions by reason of misconduct due to drug abuse and the discharge has been ordered executed at the earliest practicable date.

981028:	Commander, 2d Marines recommended vacation of suspended administrative separation processing by reason of misconduct due to drug abuse.  (Unreadable page).

981028:	Applicant found qualified for separation.

Service Record Book contains a partial Administrative Discharge package.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981118 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.

The Applicant alleges impropriety in that he “never signed a waiver to appear before a board.” The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence.  There is no evidence in the record, nor has the Applicant produced any evidence, that the discharge was not proper and equitable. The service record discharge package was missing the Applicant’s conditional administrative board waiver request. Commanding General, 2d Marine Division, II Marine Expeditionary Force letter of 980618 lists the Applicant’s conditional waiver request as an enclosure. The judge advocate’s review of 980615 stated that the Applicant submitted a request waiving the right to a hearing contingent upon receiving a favorable characterization of service. The outcome was a one-year suspension of the Applicant’s discharge for drug abuse. The Applicant did not raise this issue at the time when his administrative discharge was suspended. He did raise the issue when the suspension was vacated due to continued misconduct. Relief is not warranted.

The Applicant alleges impropriety in that he “his rebuttal letter was not transferred to the proper agency.” Commanding Officer, 2d Battalion, 8th Marines, 3d Marine Division letter of 980905 addressed the Applicant’s rebuttal letter in his recommendation to vacate the suspended discharge and included the Applicant’s rebuttal letter as an enclosure. This correspondence was addressed to the general court martial convening authority who made the decision to vacate the Applicant’s suspended discharge. Relief is not warranted.

The Applicant alleges good post service conduct. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant provided no documentation of post-service accomplishments.  The Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge.  Therefore, no relief will be granted.  

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