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

 ex-Cpl, USMC
Docket No. MD00-00910

Applicant’s Request

The application for discharge review, received 000705, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020901.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I am applying for this upgrade because drug use was never proven.
I have always been drug free.
I am going to school to educate myself and am a functioning member of society.
I was originally recommended for an honorable discharge, and I feel that based upon my service record an honorable discharge is justified.

Documentation

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

Copy of request pertaining to military records
Copy of DD Form 214 (2 copies)
Copy of DD Form 215 (2 copies)
Nine pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		930721 - 940206	COG

Period of Service Under Review:

Date of Enlistment:  940207		Date of Discharge:  971001

Length of Service (years, months, days):

	Active:    03  07  25
	Inactive:  None

Age at Entry:  17			Years Contracted:  4

Education Level:  12			AFQT:  84

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (9)			Conduct:  4.5 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM, SSDR w/1 Star

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MARCORSEPMAN 6210.5.

Chronological Listing of Significant Service Events:

930720:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

970721:	Counseled for deficiencies in performance and conduct.  [Illegal drug use while on a liberty status south of California across the International Border.  Your conduct as a Non-commissioned Officer involved with illegal drugs violates the trust and confidence of a NCO.  Your positive urinalysis for methamphetamines and amphetamine, are violations of the Marine Corps commitment for zero tolerance on illegal drug use.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970807:	Applicant refused medical officer evaluation for addictions prior to discharge.

970806:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by use of amphetamine/methamphetamine.

970806:	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.

970828:	Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to drug abuse.  The factual basis for this recommendation was use of amphetamine/ methamphetamine. 

970909:	SJA review determined the case sufficient in law and fact.

970910:	GCMCA [Commanding General, 1st Marine Division (Rein)] directed the applicant's discharge general (under 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 971001 general (under 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 issue 1, he argues that ”…drug use was never proven.  I have always been drug free.”  However, the Board found the positive results of the applicant’s urinalysis for methamphetamine and amphetamine to be sufficient proof of the applicant’s drug use.  At the time of his discharge notification, the applicant waived all his rights to contest the discharge and the basis for discharge.  He waived his right to be represented by counsel, waived a hearing before an administrative discharge board, and waived his right to submit a statement on his own behalf.  Further, the applicant was well briefed on the Marine Corps Policy on Illegal Drug Use, and executed in his own hand understanding of that policy of Zero Tolerance on 930720.  Relief denied.

The Board disagrees with the applicant’s assertion that “…based upon my service record an honorable discharge is justified.”  The applicant’s service record reflects three adverse counseling entries and a positive urinalysis for methamphetamine/amphetamine – an offense triable by courts-martial.  The applicant’s character of service is accurately reflected in his general discharge.

 The following is provided for the applicant’s edification.  The NDRB is authorized to consider 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.  However, there is no law or regulation that 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 be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record.   In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced 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 clemency 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.  The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.

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 112a, illegal use of controlled substances.

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