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

 ex-1stLt, USMC
Docket No. MD00-00488

Applicant’s Request

The application for discharge review, received 000303, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review.  The applicant listed Mr. T_ G. L_, father, as his representative on the DD Form 293.

Decision

A personal appearance hearing was conducted in Washington, D.C. on 001116.  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 3 to 2 that the character of the discharge shall not change.  The discharge shall remain: UNDER CONDITIONS OTHER THAN HONORABLE/Misconduct - Drug Abuse/Triable by Court-Martial, authority: SECNAVINST 1920.6A & MARCORSEPMAN Par. 4106.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Base review on content of letter dated 10 Feb 2000 - (Cover Letter).  I believe type discharge given to be inequitable in view of my total combined ROTC duty and active duty with Corps, involving one single incident.

Documentation

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

Copy of DD Form 214
Applicant's Representative (father)'s letter of 10 Feb 2000 w/photo of applicant
Father's request for applicant's service record dtd 11-24-98
Copies of pages from service record (13 pages)
Copies of Applicant's performance evaluations (13 pages)
Letter of Employment from R_ K_, Waste/Management, dtd Nov 6, 1992
Applicant's work assessment (Waste/Management) dtd Jul 22, 1991
Letter of Recommendation (Waste/Management) dtd Jul 22, 1991
Letter of Appreciation from Township of Northampton dtd May 2, 1989
Applicant's Father ltr of 4 Apr 2000
Verified Appraisal of Aptitudes of Applicant performed by Personnel Consultants dtd Feb 15, 1988 (5 pages)
Letter of Job Recommendation from A_ N. S_, Waste Management, Inc. undated
Letter of Employment from K_ E_, Waste Management, FL, dtd Sep 18, 1998
News Release dtd Mar 1, 1994 naming Applicant as site manager
Police Check Report dtd 4/07/00

Additional documents received subsequent to personal appearance hearing:

Letter from applicant dtd 17 Nov 00
Medical Review Officer Report dtd 5 Nov 00
W____ Management Safety Program (2 pages)
Letter from applicant to C_____ dtd 19 Nov 00
Letter from applicant to A__ dtd 19 Nov 00
Fax cover sheet from applicant dtd 14 Dec 00 with note
Letter from A__ dtd 14 Dec 00

PART II - SUMMARY OF SERVICE

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

	Active:   USNR (ROTC - ND) 780821- 800825	Interservice transfer to 
								Marine ROTC
	Inactive: USMCR(ROTC -ND) 800826 - 820514	Commissioned

Period of Service Under Review:

Date of Commission:  820515		Date of Discharge:  850503

Length of Service (years, months, days):

	Active:    02  11  00
	Inactive:  00  00  19

Age at Entry:  23			Years Contracted:  4 

Education Level:  16			AFQT:  N/A

Highest Rank:  1stLt			NEC:  N/A

Final Officer Performance Evaluation Averages:  All officer performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NUC 

Days of Unauthorized Absence:  None 

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

UNDER CONDITIONS OTHER THAN HONORABLE /Misconduct-Drug Abuse/Triable by Court-Martial, authority:  SECNAVINST 1920.6A & MARCORSEPMAN Par. 4106.2.  [Administratively corrected.]

Chronological Listing of Significant Service Events:

850301:	NIS Report concerning applicant's drug use/possession.

850313:	Charge Sheet - Violation of UCMJ, Article 112A (5 Specs).
Spec 1 - did, at Oceanside, CA, during early August 84, wrongfully use cocaine, a controlled substance.
Spec 2 - did, at Oceanside, CA, during early August 84, wrongfully possess some amount of cocaine, a controlled substance.
Spec 3 - did, at Oceanside, CA, during mid August 84, wrongfully use cocaine, a controlled substance.
Spec 4 - did, at Oceanside, CA, on various occasions during the period of about August 84 to about November 1984, wrongfully use marijuana, a controlled substance.
Spec 5 - did, at Oceanside, CA, on various occasions during the period of September 84 to about November 1984, wrongfully use cocaine, a controlled substance.

850315:	Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service in lieu of trial by court- martial.  In the request the applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other honorable conditions.  The applicant admitted guilt to the following violations of the UCMJ:  Article 112a (5 Specs): wrongful numerous use of a controlled substance.

850320:	Commanding general forwarded applicant's request for separation under other than honorable conditions to the CMC recommending approval.

850320:	SJA review determined the case sufficient in law and fact.

850412:	CMC recommended to the Secretary of the Navy that applicant's request be accepted for separation with an Under Other Than Honorable discharge in lieu of trial by court-martial.  Applicant charged with the possession and use of marijuana and cocaine on various occasions during the period of August 1984 to November 1984 and the circumstances surrounding this misconduct warrant his expeditious separation.

850416:	Assistant Secretary of the Navy (M&RA) approved applicant's discharge.

850422:	CMC directed applicant's discharge with an Under Other Than Honorable by reason of misconduct - drug abuse/triable by courts-martial, authority as SECNAVINST 1920.6A, with SPD code of "DFS1".

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 850503 under conditions other than honorable by reason of misconduct - drug abuse/triable by court-martial (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 Board found that the applicant was commissioned 820515 and served 2 years and 11 months of active duty time.  Charges were preferred to court martial on 850313 to include 5 specifications of wrongful use of a controlled substance (cocaine and marijuana).  In a signed statement on 850315, the applicant requested an administrative discharge under other than honorable conditions in lieu of a trail by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  The applicant stated he understood the elements of the offenses with which he was charged and admitted guilt to 5 violations of wrongful use of a controlled substance.  

In response to the applicant’s issue 1, the Board does not consider the applicant’s time in the Reserve Officer Training Corps (ROTC) to be a part of total length of actual service.  The applicant’s service and characterization of service is based solely on his active duty time from 820515 until 850503.  In addition, the applicant states his misconduct consisted of only “one single incident.”  The Board disagrees with this statement and found that the applicant had 5 separate incidents to which he admitted guilt.  The Board found the discharge was equitable based on the severity of the misconduct and the fact that the applicant was a Marine Corps Officer, setting an example for his subordinates.  No relief will be granted based on this issue. 

The Board also considered the applicant’s post-service conduct.  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 Board took into consideration the applicant’s post-service conduct consisting of employment, limited volunteer work, involvement with his church, a police record check and pursuit of a Master’s degree (with no supporting documentation).  The Board felt this was insufficient to warrant an upgrade to his characterization.  No relief is granted based on post service conduct.  

Pertinent Regulation/Law (at time of discharge)

A.  The Secretary of the Navy Instruction 1920.6A of 21 November 1983 (Administrative separation of Officers), establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 15 October 1981.

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 112a, wrongful use of a controlled substance.

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