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

ex-Pvt, USMC
Docket No. MD04-01066

Applicant’s Request

The application for discharge review was received on 20040616.  The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  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:

1.  “I was an exceptional Marine up until the incident which caused me to be discharged.  During my final physical, the Military found that I had diabetes.  I believe that my sugar levels may have caused me to make the bad decisions I made which led up to my discharge.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		010215 - 010311	COG

Period of Service Under Review:

Date of Enlistment:  010312		Date of Discharge:  030314

Length of Service (years, months, days):

	Active:    02  00  03                    
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  12			AFQT:  53

Highest Rank:  LCpl			MOS:  3051

Final Enlisted Performance Evaluation Averages (number of marks):

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

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  1

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:

001129:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

020821:	Counseled for deficiencies in performance and conduct.  [DWI, wrongful appropriation of a government vehicle, wrongful disposition of a government vehicle and unauthorized absence.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020830:	NAVDRUGLAB [JACKSONVILLE], reported Applicant’s urine sample, received 020823, tested positive for [Cocaine].

021213:	Applicant discharged from Substance Abuse Rehabilitation Program.  Discharge Diagnosis:  Cocaine Diagnosis.  Comments:  The patient was discharged as a Minimally Successful Completion with a fair prognosis based upon his intent to implement a structured recovery program.

030130:	Summary Court Martial
	Charge I:  Violation Art 86.
		Spec I:  Absent from appointed place of duty at 1500 on 020820.
	Charge II:  Violation Art 92.
		Spec I:  Fail to obey a regulation by taking a government vehicle into the town of Jacksonville.
		Spec II:  Violate order by viewing pornographic material on a government computer.
	Charge III:  Violation Art 111.
		Spec I:  Operate a government vehicle under the influence of a impairing substance.
	Charge IV:  Violation Art 112a.
		Spec I:  Wrongfully use cocaine.
	Pleas and Findings:  To all charges and specifications, Guilty.
	Sentence:  RIR E-1, forf  2/3 for 1 mo., 30 das conf deferred 10 das.
	CA:  Approved and ordered executed.

030130:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NAVDRUGLAB Jacksonville FL MSG whereas [Applicant] tested positive for Cocaine and the Military Police report where he operated a government vehicle while under the influence of Cocaine.   

030131:	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.

030205:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was NAVDRUGLAB Jacksonville FL MSG whereas [Applicant] tested positive for Cocaine and the Military Police report where he operated a government vehicle while under the influence of Cocaine.   

030210:	SJA review determined the case sufficient in law and fact.

030211:	GCMCA [CG, 2dFSSG] 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 20030314 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.  The Applicant states, “I was an exceptional Marine up until the incident which caused me to be discharged.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by a court-martial conviction for illegal drug use, unauthorized absence and driving a vehicle under the influence of an impairing substance, thus substantiating the misconduct for which he was separated.  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.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

The Applicant contends his disciplinary problems were the result of sugar levels causing him to make bad decisions.  The NDRB recognizes that serving in the Marine Corps is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges.  In fairness to those members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  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.  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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “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