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

FOR OFFICIAL USE ONLY

 ex-PFC, USMC
Docket No. MD06-00870

Applicant’s Request

The application for discharge review was received on 20060615.  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 20070322.  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.”  The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity:  Characterization not warranted by overall service record.

Documentation

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

Letter from Applicant, dtd April 18, 2006
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19951205 - 19960212	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19960213		Date of Discharge:  19990201

Length of Service (years, months, days):

Active:    02  11  19  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  73

Highest Rank:  LCpl	MOS:  3043 (Supply Administration and Operations Clerk)

Final Enlisted Performance Evaluation Averages (number of marks):

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

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksman Badge, Sea Service Deployment Ribbon, Letter of Appreciation.

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:

951202:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

960213:	Applicant received waiver for pre-service drug use.

960418:	Applicant received waiver of defect in enlistment, and agreed to complete enlistment.

980518:	NJP for violation of UCMJ, Article 86: UA from his appointed place of duty from 0631, 980422 to 0800, 980422, to wit: Supply physical training sessions.
Violation of UCMJ Article 86: UA from his appointed place of duty from 0831, 980422 to 1415, 980422, to wit: Supply, H&S Co, 3d Bn, 8th Mar.
	Award:  Forfeiture of $265.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 14 days.  No indication of appeal in record.

981015:	Counseling:  Advised of deficiencies in performance and conduct (SNM did test positive for a controlled substance, to wit: THC.), necessary corrective actions explained, sources of assistance provided, discharge warning issued.

981027:	Applicant evaluated at Alcohol Treatment Facility, Naval Hospital, Camp Lejeune.  Diagnosis: drug abuse, (illegible) dependence.

981031:	NJP for violation of UCMJ, Article 112a: On or about 981001, did use a controlled substance, to wit: THC.
	Violation of UCMJ, Article 112a: On or about 981028, was in possession of a controlled substance, to wit: marijuana.
	Award:  Forfeiture of $519.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

981202:	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.

981202:	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.

981202:	Commanding Officer, 3rd Battalion, 8th 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 PFC B_’s illegal drug use which resulted in his testing of positive for THC on a urinalysis given 10 October 1998 as confirmed by Naval Drug Lab Jacksonville Florida message 262223Z Oct 98

990127:	SJA review determined the case sufficient in law and fact.

990201:	GCMCA, Commanding General, 2d 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 19990201 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).

There is credible evidence in the record that the Applicant possessed and used illegal drugs, in violation of Article 112a of the UCMJ.  The NDRB advises the Applicant that certain serious offenses warrant separation from the Marine Corps 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.  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.   In addition to his drug abuse, the Applicant received nonjudicial punishment for unauthorized absence, a violation of Article 86 of the UCMJ.  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 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 and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

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 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 any 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 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 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