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

 ex-PFC, USMC
Docket No. MD00-00146

Applicant’s Request

The application for discharge review, received 991104, 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 000720.  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.  I am a very conscientious and hard working individual.  My character in no way is what was reflected on my discharge.  At the time of incident I was very depressed and unstable.

To Whom It May Concern,

I was discharged from the United States Marine Corps, with a General under other than honourable conditions for drug abuse, after I attempted suicide.  I was a Lance Corporal I got busted down to Private First Class for testing positive for THC in late Jan. early Feb. of 1998. 1 also was put on 45 days restriction and forfeited one half of two months pay.  They chose to discharge me on the legal matter instead of the medical.  I am asking for an upgrade of my discharge.

This was the first time I ever smoked Marijuana, I did not smoke it in order to get caught.  At the time I was contemplating suicide and chose to find some relief in the drug.  After which I never wanted to do again.  I knew it was wrong not only legally but also morally within myself.  I chose to do it and it was my mistake, but if I was in a clear state of mind not in the depressed/suicidal state of mind I can assure I would not have chose the path I took.

I attempted suicide on April 23, 1998, while on leave.  I was in the Wright Patt Air Force Bases Hospital for five days then sent back to Marine Corps Base Camp Lejuene.  I was then discharged for testing positive for THC, nothing to do with my attempted suicide.  I love the Marine Corps and at times wish I was still on active duty.

Currently I am a student at Sinclair Community College.  I am studying Mental Health Technology and plan to graduate in the spring of 2000. I also have become a member of the Seventh Day Adventist Church.  After I graduate from Sinclair I plan to attend Columbia Union College in Washington D.C. (which is an Adventist school) to study Theology.

Thank you for your time.

Documentation

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

Copy of DD Form 214
Character reference dated May 12, 1998
Character reference dated May 11, 1998
Character reference dated May 12, 1998
Character/job reference undated
Character/job reference dated May 14, 1998
Character reference undated
Character reference dated October 20, 1999
Character reference dated May 11, 1998
Character reference dated June 21, 1999
Sinclair Community College transcript dated October 22, 1999

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960221 - 960909	COG

Period of Service Under Review:

Date of Enlistment:  960910		Date of Discharge:  980504

Length of Service (years, months, days):

	Active:    01  07  25
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  80

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 			Conduct:  4.1 

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR 

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:

960219:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

980210:	NAVDRUGLAB [Jacksonville, FL], reported applicant’s urine sample, received 980202, tested positive for tetrahydrocannabinol.
980223:	NJP for violation of UCMJ, Article 112A:
Specification: Applicant did test positive for THC.
Awarded forfeiture of $519.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

980226:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement, THC.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  [Date estimated.]

980304:	Medical evaluation for drug abuse found the applicant to be a drug abuser (isolated incident), not drug dependent.   

980304:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse.

980304:	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.

980304:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse.  The factual basis for this recommendation was illegal drug use which resulted in his testing positive for THC on a urinalysis given on 2 February 1998 as confirmed by Naval Drug Lab, Jacksonville, FL message 102315Z Feb 98. 

980409:	SJA review determined the case sufficient in law and fact.

980424:	GCMCA [Commanding General, 2d Marine Division, II Marine Expeditionary Force] 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 980504 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 only issue, the board determined his discharge was fair and equitable by reason of misconduct due to the wrongful use of THC (marijuana).  The applicant’s claim he was depressed/unstable when he used marijuana does not mitigate his misconduct.  Misconduct due to drug abuse takes precedence over his depression and instability.  Relief denied.

In the applicant’s letter to the Board he states, he was discharged on the legal matter instead of the medical and, it was his first time ever smoking marijuana.  To the misfortune of the applicant, his misconduct takes precedence over his medical condition.  Additionally, drug abuse requires mandatory processing, whether it’s the first time or latest time.  The Board recognizes the applicant is enrolled in community college and attending church, but feels since his discharge in 1998, his post-service accomplishments are minimal and insufficient to warrant relief.  

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).  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 should produce further 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 relief based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received at the NDRB within 15 years from the date of discharge.   Legal representation is highly encouraged 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 18 Aug 95 to Present. 

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 112a, Wrongfully use THC].

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 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