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

 ex-Pvt, USMC
Docket No. MD00-00219

Applicant’s Request

The application for discharge review, received 991130, 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 000824.  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.

The NDRB did note an administrative error on the original DD Form 214.  Block 26, Separation Code should read:  “HKK1” vice “GKA1”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was wrong because it was the sole incidence in 15 months of service.

2.  Other Marines on other bases have done the same thing and they were not discharged.  I feel I was treated differently then other Marines because I was stationed in Japan.

3.  I did make a mistake in the Marine Corp but I do not think it was a carrier mistake.  Now I'm only 19 years old and I have an other than Honorable discharge on my record this has backfired on me several times in the short amount of time I have been out.

4.  I was a above average Marine and I should have been punished for my actions, however I feel the punishment was a bit extreme.

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)		970930 - 980114	COG

Period of Service Under Review:

Date of Enlistment:  981115		Date of Discharge:  990326

Length of Service (years, months, days):

	Active:    01  02  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  64

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (5)			Conduct:  4.0 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

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:

970929:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

990125:	NAVDRUGLAB San Diego, CA, reported applicant’s urine sample, received 990114, tested positive for THC.

990203:	Medical evaluation for drug abuse found the applicant to be an isolated incident of drug abuse.  Recommend command level education and administrative separation

990217:	NJP for violation of UCMJ, Article 112A:
Specification: Tested positive for the use of marijuana.
Awarded forfeiture of $519.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

990217:	Counseled for deficiencies in performance and conduct.  [Marijuana usage identified through urinalysis confirmed by Navy Drug Lab San Diego, CA message 251925Z Jan 99.]  

990218:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990219:	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.

990225:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was tested positive for the use of marijuana.  

990311:	SJA review determined the case sufficient in law and fact.

990312:	GCMCA [Commanding General, 1st Marine Aircraft Wing] 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 990326 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).

The applicant’s first issue states:  “My discharge was wrong because it was the sole incidence in 15 months of service.”  The NDRB found this issue without merit.  The applicant was discharged after having been found guilty of wrongful use of a controlled substance,  Article 112A of the Uniform Code of military Justice.  A characterization of service as Other Than Honorable is appropriate considering a punitive discharge at Court Martial could be awarded.  This issue implies a permissive policy exists where multiple violations of the Uniform Code of Military Justice are tolerated.  No such policy exists.  Relief not warranted.

The applicant’s second issue states:  “Other Marines on other bases have done the same thing and they were not discharged.  I feel I was treated differently then other Marines because I was stationed in Japan.”  The NDRB found no inequity in the applicant’s discharge.  His discharge and characterization were in keeping with the regulations. Relief is not warranted.

The applicant’s third issue states:  “I did make a mistake in the Marine Corp but I do not think it was a carrier mistake.  Now I'm only 19 years old and I have an other than Honorable discharge on my record this has backfired on me several times in the short amount of time I have been out.”  The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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.

The applicant’s fourth issue states:  “I was a above average Marine and I should have been punished for my actions, however I feel the punishment was a bit extreme.”  The NDRB found no inequity in the applicant’s discharge.  The applicant’s pro and con marks were considered in the characterization of the discharge as well as the applicant’s significant misconduct.  It was determined that the negative aspects of the applicant’s service outweighed the positive.  Relief is denied.   

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 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 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