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

 ex-PVT, USMC
Docket No. MD04-01235

Applicant’s Request

The application for discharge review was received on 20040726.  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.  Subsequent to the submission of DD Form 293, the Applicant requested representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050210.  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 tried to be a good Marine, when I was having trouble at home and in the Marines I asked for help + was denied.  Then a Cpl assaulted me I defended myself and I go to the brig.  From this point on the Cpl and other NCO’s made my life in the Marines hell.  My barrakes room was always broken into and my things were stolen and wrecked.  I was always harrassed everywhere I went.  I asked section leaders and platoon Sgt.’s for help and once again was denied.  All they knew was I like to assualt NCO’s, so they placed me in a room by myself and threatened anyone who talked to me or associated with me.  Some friends I made, they (the NCO’s) made sure they never talked to me.  I was cast out and treated as if I were a terrorist.  I couldn’t go anywhere or do anything without trouble.  Even Marines from other BN’s gave me trouble.  I wanted to be a Marine sence the day I was born and since the incident with the corporal they wouldn’t let me be a Marine.  I tried so hard but got no where so after talking to the chaplain I ran out of options, so I admit.  I took the easy way out.  I like to drink so I stayed drunk and I smoked some marijuania.  I’m so ashamed of myself but I didn’t know what else to do.  Theres not a day goes by I don’t think about my best friends in Iraq fighting and I here.  It kills me every day.”

The American Legion submitted no issues for consideration.

Documentation

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

Applicant’s DD Form 214 Member 4
Appilcant’s DD Form 214 Member 1 (2 copies)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		010713 - 020604	COG

Period of Service Under Review:

Date of Enlistment:  020605		Date of Discharge:  030306

Length of Service (years, months, days):

	Active:    00  09  01		[Does not exclude lost time]
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  44

Highest Rank:  PFC			MOS:  0331

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.0 (2)			Conduct:  2.0 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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:

010614:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

Undated:	Applicant’s statement:
“1.  Having trouble adapting to the Marine Corps.  I can’t live this life.  Period.
2.	 Tired of the bulls___ that comes with it.  Can’t handle it anymore.
3.	 My job I can’t remember anything, afraid I might get someone killed, in combat.
4.	I don’t want it anymore I thought it would get better after SOI.
5.	I can’t be away from my family, restrictions.
6.	I basically don’t want to be here anymore.  It’s not what I thought it would be like.
7.	I refuse to train.  WCD.
8.	Mother + father are nervous wrecks because I’m here.
9.	Can’t PT well at all I’m not use to this.
10.	Mentally I can’t do it- Bootcamp + SOI were different world.
11.	It pisses me off I can’t watch my niece grow.
12.	I’m not going to do it anymore.
13.	I’m afraid my ex-girlfriend might be pregnant.”

021126:	Medical evaluation:  “[Applicant]… says he no longer desires to stay in USMC + does not want to finish his enlistment because he’s having trouble being away from his family… friends.”
	Diagnosis:
		AXIS I:  Adjustment d/o – mild
		AXIS II:  Deferred
		AXIS III: None

021127:	Applicant’s statement:
	“I [Applicant] refuse to train or do anything that associates with 0331 – Machine Gunner.
	I will clean my room and pick up after my self.
	I will be in formation for accountability only.
	I will be office runner to pass the time.
	My reasons for this have been documented as well as my own copy which a copy will be made of.
	I will not get an attitude or make trouble for myself with anyone.
	I want no more trouble than what is required for my court martial.” 

021203:	Counseled regarding deficiencies.  [Pattern of misconduct with refusing to train starting 021125.]  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

021213:	NJP for violations of UCMJ. Article 86:  UA from place of duty.  Article 90:  Offered violence to a non commissioned officer.  Article 91:  Disrespectful towards a non commissioned officer.  Article 92:  Disobeyed a lawful order on 021111 and 021204.	
	Award:  RIR to E-1, forf $525 per mo for 2 mos, 45 das res and extra duty, all susp for 6 mos.
030128:	Summary Court-Martial:
Charge I:  Violation of Article 92 of the UCMJ:  Violate a wrongful order by being in possession of drug abuse paraphernalia.  
Charge II:  Violation of Article 112a of the UCMJ:  Spec 1.  On or about 030105 wrongfully use marijuana.  Spec 2.  Introduce marijuana onto a installation used by armed forces.
		Finding:  To all charges and specifications, guilty.
		Sentence:  30 das conf, RIR E-1, forf $767.00 for 1 mo.
		CA:  Approved and ordered executed.

030204:	Counseled regarding deficiencies.  [Illegal drug use.]  Advised being processed for administrative discharge.

030204:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your use of marijuana as supported by PMO and CID investigation on 030105 and your summary court-martial conviction on 030127.

030204:	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.

030211:	Substance Abuse Counseling Center found Applicant did not meet the criteria for drug abuse or dependence.

030211:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation is [Applicant’s] guilty please and subsequent finding of guilt at summary court-martial for illegal drug use on 28 January 2003.  Commanding officer’s comments: “I have personally interviewed [Applicant].  He tells me that within just a few days of arriving in Hawaii he decided he had made a mistake in joining the Marine Corps and wanted to get out.  He felt lonely and his family was having problems at home.  He used marijuana to “do something wild and crazy, to relax and to get out of the Marine Corps.”  He state that he does feel some regret for using illegal drugs but that his biggest regret is that he did not go to college and play football.  I regret that [Applicant] did not give the Marine Corps a chance.  I do not understand [Applicant’s] actions or the depth of his feelings against the Marine Corps.  I do know that [Applicant] is a legal and administrative burden.”

030227:	SJA review determined the case sufficient in law and fact.

030305:	GCMCA [CG, MCB HAWAII] 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 20030306 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.  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 Applicant’s allegations, that he was “assaulted,” that he “couldn’t go anywhere or do anything without trouble,” and that he was denied assistance and counseling for his personal problems, do not refute the presumption of regularity in this case.  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.

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 nonjudicial punishment proceedings for violations of Articles 86, 90, 91 and 92 of the UCMJ as well as a summary court-martial conviction for violating Articles 92 and 112a.  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.

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, however, 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 documentation for the Board to consider.  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 other evidence related to his discharge 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 5420.174D 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