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

 ex-LCpl, USMC
Docket No. MD99-00443

Applicant’s Request

The application for discharge review, received 990204, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested 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 991213.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My undesirable should be upgraded to Honorable because it was an incident that took place only once during my Entire service career.  My behavior was exemplary up until the incident.

2.  Since the incident I have completed a 12 month drug & alcohol program and have had no further occurrences of the incident. (Union Rescue Mission Recovery Program)

3.  During my service I truly believe that I was an asset to the Marine Corps and this country.  I believe my good far outweighs the bad.  Respectfully submitted (applicant)

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)		851029 - 860810	COG

Period of Service Under Review:

Date of Enlistment:  860811		Date of Discharge:  901128

Length of Service (years, months, days):

	Active:    04  03  19
	Inactive:  None

Age at Entry:  18			Years Contracted:  6

Education Level:  12			AFQT:  53

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (10)		Conduct:  4.3 (10)

Military Decorations: GCM
Unit/Campaign/Service Awards:, MM

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

851029:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

900216:	NAVDRUGLAB [San Diego, CA], reported applicant’s urine sample, received 900208, tested positive for cocaine.

900419:	NJP for violation of UCMJ, Article 112A (2 specs):
Specification 1: Wrongfully use a controlled substance, to wit: cocaine on 900129, as proven by NAVDRUGLAB San Diego, CA dated P 16000Z Feb90.
Specification 2: Wrongfully use a controlled substance, to wit: THC as proven by NAVDRUGLAB San Diego, CA dated 212001Z Mar90.
Violation of UCMJ, Article 86 (2 specs:
Specification 1: Absent from appointed place of duty on 0630-1030, 900406, to wit: morning cleanup and formation.
Specification 2: Absent from appointed place of duty on 0630-0830, 900409, to wit: morning cleanup and formation. 
Awarded forfeiture of $450.00 per month for 2 months, restriction for 45 days, reduction to LCpl.  No indication of appeal in record.

900608:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

900608:	Applicant advised of his 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.

900803:	Medical Examination for drug and alcohol abuse:  Applicant found to be psychologically dependent on drugs and alcohol. 

900907:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was one instance of drug abuse (cocaine), resulting in NJP.
 
901002:	SJA review determined the case sufficient in law and fact.

901004:	GCMCA [Commanding General, Marine Corps Base, Camp Pendleton, CA] 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 901128 under other than honorable conditions for misconduct due to drug abuse (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In the applicant’s issue 1, the Board found this issue to be without merit.  The applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single incident”.   The Marine Corps’ policy on drug abuse is quite clear – zero tolerance.  The applicant is obviously confusing this policy with the civilian establishment wherein some offenses, even drug offenses, are treated with leniency because they are a first-time incident.  The Marine Corps has no such leniency policy.  Relief is denied.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  The applicant must be aware that 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, may be considered by the NDRB.  The applicant’s successful completion of the alcohol and drug program is commendable.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article [ e.g., Article 86, unauthorized absence for more than 30 days].

C.  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.  

D.  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.

E.  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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023