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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00853

Applicant’s Request

The application for discharge review was received on 20060601.  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 20070329.  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.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS.”; Block 28, Narrative Reason for Separation, should read:  “MISCONDUCT,” and Block 29, Dates and Time Lost During This Period, should read “(27) 19960620-19960716.”  The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Decisional issues

Equity:  Characterization not warranted by overall service record
	 Post-service equity mitigates misconduct

Documentation

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

Reference Letter from M. R_ B_, dtd May 5, 2006
Applicant’s DD Form 214 (Service 8)
Excerpt from Texas Commission on Law Enforcement Officer Standards and Educations Information, dtd June 1, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19930301 - 19931018	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19931019		Date of Discharge:  19960827

Length of Service (years, months, days):

Active:    02  10  09  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  27 days

Age at Entry:  19 

Years Contracted:  4 

Education Level:  12				AFQT:  49

Highest Rank:  LCpl				MOS:  1833

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (7)			Conduct:  4.1 (7)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Expert Badge (2 Award), National Defense Service Medal, 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:

930225:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

931019:	Waiver granted for pre-service drug use.

960228:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 960223, tested positive for THC.

960306:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 960301, tested positive for THC.

960620:	Summary Court-Martial.
	Charge: violation of the UCMJ, Article 112a: (2 specifications)
	Specification 1: Wrongful use of marijuana.
	Specification 2: Wrongful use of marijuana. 
	Finding: to Charge and the specifications thereunder, guilty.
	Sentence: Forfeiture of 2/3 pay per month for 1 month, reduced to E-1, confinement for 30 days.
	CA action 960620:  Sentence approved and ordered executed.

960620:	To confinement.

960716:	From confinement.

960718:	Medical evaluation for drug use, CAPT B. L. G_, MC, USN:
	Drug history:  1993, smoke marijuana 4x PTE/snort cocaine 1x PTE.  Marijuana, smoke a lot since on active duty with last use around early 3/96.
	Impression:  Marijuana abuse.
	Recommendations:  1. Process for separation.  2. Counseled on UA charges.  3.  OP if retained.

960718:	Applicant notified of intended recommendation for discharge as 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.  

960719:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

960722:	Commanding Officer, 3rd Assault Amphibian Battalion, recommended Applicant’s discharge under other than honorable conditions.  The factual basis for this recommendation was Private M_’s two positive urinalysis, conviction at a summary court-martial.

960812:	SJA review determined the case sufficient in law and fact.

960814:	GCMCA, Commanding General, 1st Marine Division, 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 19960827 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, a violation of 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 NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violation of Article 112a is considered a serious offense for which a punitive discharge is authorized if adjudged at a special or general court-martial.  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 following is provided for the edification of the Applicant.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  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 or inequity 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 sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  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 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.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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