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

FOR OFFICIAL USE ONLY

 ex-PFC, USMC
Docket No. MD06-00901

Applicant’s Request

The application for discharge review was received on 20060620.  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 discharge review before the Board in the Washington, D.C. Metropolitan area.  The Applicant designated American Legion as the representative on the DD Form 293.  Subsequent to the application the case was converted to a documentary discharge review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070830.  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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues
1.  Equity – Quality of Service. 2.  Propriety – Applicant claiming he did not receive any drug treatment counseling after his drug use. 3.  Equity – Post Service.    

Documentation

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

Applicant’s DD Form 214 (Service 2)
VA Form 21-22 (Appointment of Veterans Service Application)
Letter from Applicant (6 pgs), dtd March 27, 2006
Excerpts from Service Record (26 pgs) 

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19880715 - 19890709	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19890710		Date of Discharge:  19930709

Length of Service (years, months, days):

Active:    04  00  00  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 (Parental Consent)

Years Contracted:  4 

Education Level:  12				AFQT:  44

Highest Rank:  LCpl				MOS:  2531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (9)			Conduct:  3.9 (9)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Combat Action Ribbon, Southwest Asia Service Medal with 2 Stars, Kuwait Liberation Medal, National Defense Service Medal, Sea Service Deployment Ribbon, Navy Unit Commendation, Rifle Expert Badge

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Drug abuse (administrative discharge board required but waived), authority:  MARCORSEPMAN 6210.5.

Chronological Listing of Significant Service Events:

880714:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

880715:	Applicant was granted pre-service drug waiver.	

910806:	NJP for violation of UCMJ, Article 86: Did on or about 0530, 910725 absent himself from his appointed place of duty to wit: the Rifle Range.
Award:  Forfeiture of $216.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 14 days.  No indication of appeal in the record.

911215:	Counseling:  Advised of deficiencies in performance and conduct (Failure to be at appointed place of duty on time, unsatisfactory personal appearance/military bearing.), necessary corrective actions explained, sources of assistance provided, discharge warning issued.

920207:	NJP for violation of UCMJ, Article 86: Did on or about 0600, 920203 failed to go to his appointed place of duty to wit: morning PT.
Award:  Forfeiture of $225.00 pay per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

920416:	Twentynine Palms Therapy Group status report:  Applicant was inconsistently coming to therapy and does not appear compliant with physical therapy regimen.  Recommendation:  Discharge from active physical therapy due to non-compliance.

920706:	Letter of indebtedness from Morale Welfare and Recreation (MWR) dishonored check.

930618:	NJP for violation of UCMJ, Article 91: Did show disrespect to CPL R_.
	Violation of UCMJ, Article 112a: Did use some amount of THC (marijuana).
	Award:  Forfeiture of $456.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Appealed 930623.  Appeal denied 930701.

930622:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct, specifically pattern of misconduct and drug abuse.  The factual basis for this recommendation was your failure to conform to the standards of the Marine Corps.  On 15 July 1988, you received a waiver to enter the U.S. Marine Corps due to your illegal preservice use of drugs.  On 7 August 1991, you received NJP for UA from rifle range; on 15 December 1991, you received a 6105 for failure to go, unsatisfactory appearance and military bearing; on 7 February 1992, you received NJP for unlawful use of marijuana (THC) and disrespect.  I have determined that you posses no potential for further service and, accordingly, your retention is not warranted. 

930622:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

930628:	Applicant acknowledged being diagnosed as alcohol or drug dependent by Medical Officer.

930701:	An Administrative Discharge board, found that the Applicant had committed pattern of misconduct and drug abuse, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

930701:	Commanding Officer concurred with the recommendation of the Administrative Discharge Board that Applicant be discharged under other than honorable conditions.

930706:	SJA review determined the case sufficient in law and fact.

930706:	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 19930709 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).

The Applicant is claiming quality of service equity:  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under 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.  The Applicant’s service was marred by the award of nonjudicial punishment (NJP) on 3 occasions for violations of the Uniform Code of Military Justice (UCMJ).  The Applicant’s misconduct included unauthorized absence, Insubordinate conduct toward a petty officer, Wrongful use, possession, etc… of a controlled substance.  (Violation of UCMJ Articles 91 and 112a are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  The Applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  

The Applicant claims he did not receive any drug treatment or counseling after his drug use. While the Applicant may feel that he did not receive any drug treatment or counseling, it was noted, during a review of his record, that the Applicant was provided counseling and assistance on 19930728 concerning his misconduct for drug use.  Furthermore, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  

The Applicant is claiming equity – post service.  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 the Marine Corps.  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.  

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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