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

ex-PVT, USMC
Docket No. MD04-01360

Applicant’s Request

The application for discharge review was received on 20040825.  The Applicant requested 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 20050214.  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 am requesting an upgrade of my discharge because I honorably served my country in combat.  The determining factor of my discharge was a minor incident which I don’t feel I was completely wrong about. I will be attending Keene State College in NH this fall.  I am hoping to get my discharge upgraded to enable me to become a person more qualified to contribute to society and help me in my endeavors at Keene State.”

Documentation

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

Recommendation for Retention dated May 25, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   			None			HON
	Inactive: USMCR (J)		000504 - 000807	COG

Period of Service Under Review:

Date of Enlistment:  000808		Date of Discharge:  040204

Length of Service (years, months, days):

	Active:    03  05  10 (Accounts for lost time.)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  54

Highest Rank:  LCpl			MOS:  0351 (Anti-Tank Assaultman)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (8)			Conduct:  3.3 (8)

Military Decorations:  CAR 

Unit/Campaign/Service Awards:  SSDR, NDSM, PUC, RQB (Expert), PQB (Expert)

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:

020502:	Pre-Trial Agreement: In the exchange for not referring charges to a special court-martial for the charge[s] and specification[s] preferred enclosure (1) U.S. Marine Corps Military Police Investigations, LCpl S_ agrees to accept trial by summary court-martial.  LCpl S_ agrees to plead guilty to all charges and specifications there under.  LCpl S_ must remain provident to the charges through the announcement of sentence to take effect.

020520:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a.
	Specification: Wrongful possession of controlled substance, to wit: mushrooms.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Reduced to E-1, Forfeiture of $736.00 pay per month for 1 month, and confinement for 30 days.
	CA action 020520:  Sentence approved and ordered executed.

020520:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement, possession of hallucinogenic mushrooms, which was confirmed by Military Police Investigation report #0203302023000527-7NMA/F]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020724:	NJP for violation of UCMJ, Article 89:  Did on or about 1800, 020716, behave himself with disrespect toward LIMA Company Commander, Capt T_, his superior commissioned officer, then known by the said SNM to be his superior commissioned officer by responding to questions, to wit: “I don’t understand Sir” and “I am glad you think you know me so well Sir” after.
Awarded forfeiture of $552.00 pay per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

021112:	NAVDRUGLAB [JACKSONVILLE, FL] reported Applicant’s urine sample, received 021106, tested positive for THC.

021212:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a.
	Specification: Wrongful use of THC.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Reduced to E-1, forfeiture of $736.00 pay per month for 1 month, and 45 days extra duties.
	CA action 021212:  Sentence approved and ordered executed.

031114:	NJP for violation of UCMJ, Article 90:  Willfully disobey a superior commissioned officer.
Violation of UCMJ, Article 91:  Disobey an NCO
Violation of UCMJ, Article 134:  Drunk and Disorderly.
Awarded:  Unknown (Extracted from Administrative Separation Package.)

031201:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse [Extracted from case file].

031201:	Applicant advised of rights and having elected not to consult 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 [Extracted from case file].

031201:	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 illegal use of THC and (his) multiple nonjudicial punishments and courts-martial” [Extracted from case file].  

040120:	SJA review determined the case sufficient in law and fact.

040121:	GCMCA [Commander, 4th Marine Expeditionary Brigade] 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 20040204 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 Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing educational 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 discovered no impropriety or inequity and considers his discharge to be proper and equitable.   This issue does not serve to provide a foundation upon which the Board can grant relief.  

The Applicant states his discharge was based on “a minor incident which I don’t feel I was completely wrong about.”  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on two separate occasions for disrespect toward a commissioned officer, willful disobedience of a commissioned officer, disobedience of a NCO and being drunk and disorderly.  The Applicant’s record is further marred by his receiving Summary Court-Martial on two separate occasions for wrongful possession and use of illegal drugs, thus substantiating the misconduct for which he was separated.  Drug abuse warrants processing for separation, normally under other than honorable conditions. It must be noted most Marines serve honorably; thereby, earning their honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due.  An upgrade to general (under honorable conditions) would be inappropriate.  Relief denied.  

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 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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   The Board appreciates the Applicant’s efforts to improve his life through education and becoming a more productive citizen.  At this time, the Applicant has not provided sufficient documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief is not warranted.
 
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 5420.174D 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