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

ex-PFC, USMC
Docket No. MD00-00148

Applicant’s Request

The application for discharge review, received 991102, requested that the characterization of service on the discharge be changed to Honorable.  The applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The applicant listed a private 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 HONORABLE CONDITIONS (GENERAL)/MISCONDUCT-Drug abuse (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action.

2.  My discharge was improper because there was no legal basis for the separation proceedings.  (See Exhibit C, Page , Paragraph 3.)

3.  My discharge was improper because the board improperly considered the possibility that I would receive clemency or a suspension of the discharge.

4.  My discharge was improper and inequitable because the evidence presented at the board hearing clearly showed that I had potential for future service in the Marine Corps.

5.  My discharge was inequitable because it was based on one isolated incident in nearly 5-1/2 years of honorable service with both the Army and the Marine Corps.

Documentation

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

Exhibit A - Affidavit of counsel and brief of arguments
Exhibit B - Affidavit of applicant
Exhibit C - Letter from Defense counsel dated 29 September 1992
Exhibit D - Service record book entries (12 pages)
Exhibit E - Administrative Separation Package (34 pages)
Exhibit F - Character reference (11 pages)
Exhibit G - Documents reflecting meritorious service (10 pages)
Exhibit H - DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USA			860121 - 890120	HON
	Inactive: USMCR(J)		900430 - 900502	COG

Period of Service Under Review:

Date of Enlistment:  900503		Date of Discharge:  921208

Length of Service (years, months, days):

	Active:    02  07  06
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  62

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 			Conduct:  4.0 

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, CAR, NDSM, NUC, ASR, GCM (Army), AAM, KLM, SASM with 1 Bronze Star

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

900427:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

920409:	NAVDRUGLAB [Jacksonville, FL], reported applicant’s urine sample, received 920402, tested positive for amphetamine/methamphetamine.

920424:	Counseled for deficiencies in performance and conduct.  [Failure to conform to Marine Corps drug policy.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920424:	Medical evaluation for drug/alcohol abuse found the applicant not drug or alcohol dependent.   

920427:	NJP for violation of UCMJ, Article 112A:
Specification: Use amphetamine/methamphetamine on 24Mar92.
Awarded forfeiture of $400.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

920713:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse.

920721:	Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.

920723:	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 use of amphetamines/ methamphetamines. 

920925:	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 Honorable conditions (General).

921103:	SJA review determined the case sufficient in law and fact.

921106:	GCMCA [Commanding General, 1st Marine Division (Rein), FMF] directed the applicant's discharge under Honorable conditions (General) by reason of misconduct due to Drug abuse.

981106:         Board for Correction of Naval Records (BCNR) stated the discharge was proper and no change is warranted and denied applicant’s claim.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 921208 under Honorable conditions (General) 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 case of the applicant’s issues 1 through 5, the board determined these issues are without merit.  The Board reviewed the applicant’s record and all accompanying documents for propriety and equity.  There were no errors in the discharge process or the determination of the characterization of his discharge.  Additionally, the NDRB concurs with the decision made by the Board of Correction of Naval Records (BCNR), a higher reviewing authority.  Relief is denied.  No further action is required by the NDRB.

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 112a, illegal use amphetamines/methamphetamines].

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