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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD06-00944

Applicant’s Request

The application for discharge review was received on 20060705.  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 20070510.  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 - ISSUES AND DOCUMENTATION

Decisional Issues

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)
Applicant’s DD Form 214
Applicant’s DD Form 215 (2)
Letter from Applicant, dtd February 16, 2006
Performance/Character Reference Ltr from Maj. S_ J. D_, USAF, MD, FACP, dtd 	March 24, 2004 
Letter of Recommendation from R_ M_, Dean, Nyack College, Washington DC, dtd 	July 23, 2002
Certificate of Achievement, dtd August 12, 1997
Letter from Pastor P_ A. C_, dtd September 29, 2003
Appreciation Certificate, dtd August 1, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19970722 - 19980720	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19980721		Date of Discharge:  20010212

Length of Service (years, months, days):

Active:    02  06  22  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  * See note below

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 

Education Level:  12				AFQT:  42

Highest Rank:  LCpl				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (3)			Conduct:  4.3 (3)

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

*Note:  Applicant to confinement on 001025, sentenced to 30 days at summary court martial.  Service Record does not provide number of days served in confinement.

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:

970721:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

980721:	Received CO, 12th MCD waiver authority #0798-2093.

990817:	Counseling:  Advised of deficiencies in performance and conduct (Failure to pay debts and financial irresponsibility.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001025:	Summary Court-Martial.
	Charge: violation of the UCMJ, Article 112a: (2 specs).
	Finding: to Charge and the specifications thereunder, guilty.
	Sentence: Confinement for 30 days, forfeiture of $670.00, reduced to E-1.
	CA action 001107:  Sentence approved and ordered executed.

001025:	Applicant to confinement.

001122:	Commanding Officer, Naval Medical Clinic, Annapolis.  Alcohol/Drug Screening Results and Treatment Recommendations ICO C_ O_, USMC.
	Applicant meets the DSM-IV clinical criteria for alcohol abuse.  Applicant declined the opportunity to participate in an alcohol/drug treatment program prior to his discharge.  

001128:	Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was drug abuse for which the Applicant was convicted by summary court-martial on 001025.  Applicant informed the least favorable character of service possible was as under other than honorable conditions.

001130:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010117:	Commanding Officer, U.S. Naval Academy Company, recommended Applicant’s discharge by reason of misconduct due to drug abuse with a characterization of service of under other than honorable conditions.  Commanding Officer’s comments: “Private O_ declined treatment to participate in an alcohol/drug treatment prior to his discharge as noted in the CAAC letter to the Commanding Officer, U.S. Naval Academy Company dated 22 November 2000.  Based on Private O_’s illegal use of a controlled substance, it is requested that he be separated from the Marine Corps with a discharge under other than honorable conditions.”

010119:	Commanding Officer, Marine Barracks, Washington DC, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct.

010202:	SJA review determined the case sufficient in law and fact.

010202:	GCMCA, Commanding General, Marine Corps Base, Quantico, 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 20010212 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).

Equity – Post service:  The Applicant contends that his discharge should be upgraded because of his post service accomplishments.

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 the following documentation of his post service accomplishments:  letters of recommendation from one of his college professors and the Dean of the college that he attended; a letter from a church Pastor; a certificate of appreciation for service to a vacation bible school.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of a verifiable employment record, documentation of continuing community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.  Therefore, no relief will be granted.  

When the service of a member of the U.S. Marine Corps 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 retention warning and his conviction by summary court martial of violations of Article 112a (2 specifications) of the UCMJ.  Violations of UCMJ Article 112a are considered to be serious offenses, for which a punitive discharge is authorized if adjudged by a special or general court martial.  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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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.

For the Applicant’s edification, 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 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