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

 ex-Pvt, USMC
Docket No. MD04-00305

Applicant’s Request

The application for discharge review was received on 20031203.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requested a documentary record review.  The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  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/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

Issue 1:  “My discharge has made it difficult to obtain employment, and caused me to lose all veterans benefits including the Montgomery G I Bill.  I received the maximum judiciary punishment and was still awarded this discharge without the consideration that 28 months of service this was my only infraction.”

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None	
	Inactive: USMCR (J)		990619 - 000618	COG

Period of Service Under Review:

Date of Enlistment:  000619		Date of Discharge:  021018

Length of Service (years, months, days):

	Active:    02  04  00
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  97

Highest Rank:  XX3

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1*			Conduct:  4.2*

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, AFEM

Days of Unauthorized Absence:  None

* NFR.  Taken from enclosure to SJA’s discharge review.

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:

990615:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

990619:	Initial enlistment contract documents admission of pre-service marijuana experimentation. 

020618:	NAVDRUGLAB [San Diego, CA] reported Applicant’s urine sample, received 020610, tested positive for Amphetamine/methamphetamine.

020812:	Applicant made a free and voluntary statement in writing that he tried crystal-meth at Club Virus.

020829:	Applicant entered into a pretrial agreement to accept a summary court-martial. 	

020917:	SACO/DACO Applicant was screened to rule out substance abuse/dependency.  Recommended Applicant return to duty with no further action.  Further recommended Applicant attend SACC MCBH process group.

020923:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a.
	Specification:  … while on active duty, did … wrongfully use methamphetamine.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Forfeiture of $700.00 per month for 1 month, reduced to E-1 and confined for 21 days.
	CA action 020923:  Sentence approved and ordered executed.
	
020926:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the Applicant’s wrongful use of methamphetamine.

020926:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

020927:	Counseled for deficiencies in performance and conduct.  [Applicants illegal drug use, specifically, using methamphetamine on diverse occasions during the month of June.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020927:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the Applicant’s conviction at summary court-martial for wrongful use of methamphetamine.

021015:	SJA review determined the case sufficient in law and fact.

021017:	GCMCA [Commanding General, Marine Corps Base Hawaii] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

021017:	Applicant debarred from Marine Corps Base Hawaii.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021018 under other than honorable conditions for misconduct due to drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1.   In the Applicant’s case, the Board discovered no impropriety or inequity; thereby, considering the Applicant’s discharge proper and equitable. The applicant opines his discharge was based on one isolated incident in “28 months.”  Certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.   The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by a Summary Court-Martial for illegal drug use; specifically, methamphetamines.  A service characterization of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a member of the U. S. Marine Corps.    The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service.  An upgrade to general (under honorable conditions) would be inappropriate.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board, as stated above, discovered no impropriety or inequity.  The Applicant’s discharge is considered to be proper and equitable.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits.  This issue does not serve to provide a foundation upon which the Board can grant relief.  
 
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 service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided any verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. 
 
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 additional documentation to support any claims of post-service accomplishments at that time.  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 P1900.16F), effective 01 September 2001 until Present. 

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023