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

 ex-Pvt, USMC
Docket No. MD04-01271

Applicant’s Request

The application for discharge review was received on 20040806.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review.  The Applicant listed Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050512.  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, OJ W_ (Applicant) was A good Marine & I cannot further my education & receive a fair chance in the career of my choice because of My discharge.  SNM was demoted from rank of E-3/LCpl to E2/PFC because of other Marines caught stealing & my name came up.  I was not caught stealing.  Later, after leaving that duty station, (MWSS 172 S-4) I arrived aboard Camp Lejuene.  2ND Supply BnH&S Co.  I tested positive for THC in my system.  E-2 PFC- E-1 PVT other Marines tested positive more than once & weren’t kicked out but I was.”

Issues submitted by Applicant’s representative Disabled American Veterans:

2.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Under Other Than Honorable Conditions Discharge to that of Honorable.

The FSM served on active service from September 15, 1997 to November 17, 1999 at which time he was discharged due to Misconduct due to drug abuse.  

The FSM contends the current discharge is improper because it is based on one positive THC test.  Even though this is not proper conduct his proficiency and conduct marks reflect high marks of 3.9 to 4.6 revealing a quality driven Marine that made a mistake.  Additionally, he believe that due to certain remarks made by members of the Command that he would not receive a fair and impartial hearing if Mast was requested to challenge the direction in which the issue was going.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper.  The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted.  See, SECNAVIST 5420.174 D, Sect.  407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

Under the premises of equitable relief, we believe the Board can change the discharge to reflect a General discharge we leave that to a determination by the Board.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.   These issues do not supersede any issues previously submitted by the applicant.

Respectfully,”

Applicant’s remarks, as stated on the application:

“I received a Navy Achievent Medal for work I done on a deployment.  Besides those issues (listed above) SNM did my job well & to the best of my ability.
SNM was told to request Mass but tension was received From Co Gunnery Sgt at that time.  I feel as if I was harassed by the Co GSgt N_, & Co 1Sgt H_ because of my SRB not my work.
I would like to recieve a few vet benefits towards school & job references”

Documentation

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

Letter from Disabled American Veterans National Service Office, K_ L. G_, dated April 19, 2005

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		970909 - 970914	COG

Period of Service Under Review:

Date of Enlistment:  970915		Date of Discharge:  991117

Length of Service (years, months, days):

	Active:    02  02  03
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rank:  LCpl			MOS:  0431

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (7)			Conduct:  4.3 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  CoC, SSDR, RMB

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:

990304:	NJP for violation of UCMJ, Article 121:  Larceny and wrongful appropriation.  At MWSS-172, 1st MAW, did steal compact disc from the Marine Corps Exchange.
Awarded forfeiture of $400.00 per month for 2 months, restriction and extra duties for 30 days and reduction to E-2.  Not appealed.

990315:	Counseled for deficiencies in performance and conduct.  [Failure to be at appointed place of duty, specifically, not mustering at the appointed place and time with section to proceed to the armory.]  Necessary corrective actions explained, sources of assistance provided, and discharge warning issued.

990811:	NJP for violation of UCMJ, Article 112a:  In that SNM did on or about 990716 test positive for THC from urinalysis.
Awarded forfeiture of $443.00 per month for 2 months, restriction for 60 days, reduction to E-1.  Not appealed.

990814:	Counseled for deficiencies in performance and conduct.  [Pattern of misconduct, your blatant disregard for good order, discipline and display of poor judgment is unacceptable and will not be tolerated.  Within the last 6 months you have been charged with Article(s) 121 (Larceny), 112a Positive for THC and 134 Restriction, breaking as well as an Pg 11 for Art 86 U/A.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
	Applicant chose not to make a statement.

990816:	Counseled regarding deficiencies, specifically, the illegal use of marijuana usage identified through urinalysis confirmed by NAVDRUGLAB JAXFL msg 221728Z JUN 99.  Necessary corrective actions explained.  Sources of assistance identified.

991117:	DD Form 214:  Applicant discharged Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

Applicant’s discharge package not contained in the service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19991117 under other than honorable conditions by reason of misconduct due to drug abuse (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (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 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.

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 2 retention warnings and 2 nonjudicial punishment proceedings for violations of Articles 121 (larceny) and 112a (wrongful use of a controlled substance) of the UCMJ.  The nonjudicial punishment for illegal drug use substantiates the misconduct for which he was separated and no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. 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 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 on 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 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 P1900.16E), 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, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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