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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00974

Applicant’s Request

The application for discharge review was received on 20060714.  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 20070523.  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)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19920506 - 19930104	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19930105		Date of Discharge:  19940627

Length of Service (years, months, days):

Active:    01  05  23
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  53

Highest Rank:  LCpl				MOS:  3531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (4)				Conduct:  3.4 (4)

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

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:

920505:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

931027:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 931022, tested positive for THC.

931123:	NJP for violation of UCMJ, Article 86: UA (AWOL) from 0500, 931025 - 1630, 931025.
Violation of UCMJ, Article 92: Did on or about 931022 violated BnO 1050.1E by exceeding liberty limits.
Violation of UCMJ, Article 112a: Wrongfully use marijuana.
	Award:  Forfeiture of $456.00 per month for 1 month, restriction and extra duty for 30 days, reduction to E-2.  Not appealed.

931216:	Applicant signed Statement of Understanding of treatment for Substance Abuse at a Veterans Administration Medical Center.

940401:	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.  Applicant informed that the Commanding Officer intended to recommend a characterization of service as under other than honorable conditions.

940401:	Applicant advised of rights and having elected not to consult, elected to waive all rights.

940401:	Commanding Officer recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

940501:	SJA review determined the case sufficient in law and fact.

940505:	GCMCA, Commanding General, 2d Marine Division, MarForLant, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

940624:	NJP for violation of UCMJ, Article 121[sic]: Assault LCpl __ on 940616.
	Award:  Forfeiture of $416.00 per month for 1 month, restriction and extra duty for 7 days, reduction to E-1.  Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940627 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 requests upgrade of the characterization of discharge.  Certain serious offenses, even though isolated, warrant separation from the U. S. Marine Corps in order to maintain proper order and discipline. Mandatory processing for separation is required for Marines who abuse illegal drugs.   There is credible evidence in the record that the Applicant used illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  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 mentioned evidence of post service accomplishments that he intended to provide in support of his request for upgrade although none were included with the application.  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 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 P1900.16D), 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