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

ex-PFC, USMC
Docket No. MD00-00067

Applicant’s Request

The application for discharge review, received 991014, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to misconduct.  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 000614.  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, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues
 
1.  My discharge was inequitable because it was based on one isolated incident in 19 months of service with no other adverse action.  To the contrary, 11 months was served at Guantanamo Bay, Cuba, where a certificate of commendation was earned.  Request my discharge be upgraded to General, Under Honorable Conditions, taking into consideration the mistake I mad I honestly regret.  Thank You.     

Documentation

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

Copy of DD Form 214
Copy of Certificate of Commendation

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		940218 - 940822	COG

Period of Service Under Review:

Date of Enlistment:  940823		Date of Discharge:  961011

Length of Service (years, months, days):

	Active:    02  01  17
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  34

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (5)			Conduct:  4.0 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, OR, HSM, JMUC, Rifle Marksmanship Badge 

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:

940217:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

960628:	Counseled concerning lost I.D. Card form DD 2MC.
 
960709:	Counseled for deficiencies in performance and conduct.  [Poor judgement and irresponsibility, Specifically; SNM was counseled for being 35 minutes UA from a BLT formation at 1800 on 960707] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960805:	NAVDRUGLAB [JACKSONVILLE, FL], reported applicant’s urine sample, received 960726, tested positive for [THC].

960809:	NJP for violation of UCMJ, Article 112a: Wrongfully used a controlled substance (THC).
Awarded forfeiture of $400.00 per month for 2 months, restriction and 
extra duties for 45 days, reduction to E-2.  Not appealed.

960813:	Commanding Officer, B Company, 1st Battalion, 8th Marine requested applicant be processed for administrative separation for Drug Abuse based on positive report of urine sample test, recommended discharge  Under Honorable Conditions (General).

960816:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

960819:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

960821:	Substance Abuse Evaluation Report: indicates applicant was evaluated on 960821 as command referral, the counselor's diagnostic impression was Drug Abuse/Isolated Incident, and was confirmed by a medical officer's diagnosis, recommended administrative separation.
  
960821:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was PFC M_____'s illegal drug use which resulted in him testing positive for THC on a urinalysis given on 960719 as confirmed by Naval Drug Lab, Jacksonville, Florida message 051010Z Aug 96

960913:	SJA review determined the case sufficient in law and fact.

961002:	GCMCA [CG, 2d MarDiv] 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 961011 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).

In the applicant’s issue 1, the Board determined this issue is without merit. The applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  Relief 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 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 P1900.16E), effective 18 Aug 95 to Present. 

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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023