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

 ex-PFC, USMC
Docket No. MD99-01188

Applicant’s Request

The application for discharge review, received 990903, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing.  The applicant listed the American Legion as his representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000512.  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 (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (EQUITY ISSUE) His violations of the UCMJ notwithstanding, this former member opines that his otherwise creditable service period is sufficient to warrant separation under honorable conditions.

2.  (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

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)		880502 - 880726	COG

Period of Service Under Review:

Date of Enlistment:  880727		Date of Discharge:  920804

Length of Service (years, months, days):

	Active:    04 00  8
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (12)			Conduct:  3.8 (12)

Military Decorations:  None

Unit/Campaign/Service Awards:  OSR, MM, Letter of Appreciation, NDSM, SSDR, SASM (1), Certificate of Commendation, MUC, JMUC, JMUA, KLM

Days of Unauthorized Absence:  21

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

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

Chronological Listing of Significant Service Events:

871210:	Counseled on the Marine Corps policy on the illegal use of drugs.

880428:	Applicant's medical waiver is approved.

890928:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence by dismissing yourself from a work detail without proper authorization.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

891201:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully use marijuana on 891023.
Awarded forfeiture of $391.00 per month for 2 months, correctional custody for 30 days, extra duties for 30 days.  Correctional custody suspended for 6 months.  Not appealed.

900412:	Counseled for deficiencies in performance and conduct.  [Fight at the local enlisted club during which government property was damaged.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900928:	SACO for evaluation: A: Adjustment disorder. P: Psych consult with appointment, contract, recommend Level 2, will not start antabuse at this time, and will speak with A Co and 1st Sgt.

901009:	Medical entry:  As per recommendation by psych the following plan is currently recommended by MO as well. 1) Level I tx, 2) AA/NA, 3) Stress management.

901119:	Applicant completed Level II treatment.

910321:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 0800, 910217 to 1400, 910226 (10 days).
Awarded restriction and extra duties for 5 days.  Not appealed.
920521:	NAVDRUGLAB [Oakland, CA], reported applicant’s urine sample, received 920507, tested positive for THC.

920612:	NJP for violation of UCMJ, Article 112A:
Specification: Possess marijuana on 920521.
Awarded Reduction to PFC.  Not appealed.

920625:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

920625:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

920711:	Medical evaluation for drug abuse found the applicant to be a chemical dependent on ETOH and marijuana

920718:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

920722:	Site Commander recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was drug abuse as evidenced by your testing positive for THC on urinalysis test conducted on 13 May 92. 

920729:	SJA review determined the case sufficient in law and fact.

920730:	GCMCA [Commanding General, Marine Reserve Force, FMF] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

920804:	Applicant offered VA treatment and refused.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920804 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).

The applicant’s representative submitted the following as issue 1: (EQUITY ISSUE) his violations of the UCMJ notwithstanding, this former member opines that his otherwise creditable service period is sufficient to warrant separation under honorable conditions. During his 4 year period of active duty, the applicant received 3 NJP’s.  Two of these were for using marijuana, a drug he knew was illegal in the Marine Corps (as evidence by his acknowledgement of the policy on 871210). The third was for being UA for 10 days. Clearly the applicant’s service was not creditable and did not rate an honorable discharge.  Relief denied.

The applicant’s representative submitted the following as issue 2: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV).  However, 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, is considered.  The applicant provided no documentation of his post-service. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct.  He is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Relief denied.
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.  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.  

C.  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.

D.  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