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

 ex-Pvt, USMC
Docket No. MD00-00912

Applicant’s Request

The application for discharge review, received 000712, 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 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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Under current standards, I (applicant) would not receive the type of discharge I did.  Prior to being discharged from the United States Marine Corps my average conduct and efficiency ratings/behavior and proficiency marks were good.  My ability to serve was impaired by my youth and immaturity.  I was nineteen years old when I enlisted and I was really dumb about who I hung around with and using drugs.  Personal problems impaired my ability to serve.  I never thought that I have an alcohol and drug problem until I found A.A.  My use of drugs impaired my ability to serve and I'm very ashamed of that.  My use of alcohol impaired my ability to serve and now I'm currently taking care of these problems.  Medical and physical problems I had impaired my ability to serve also.  I was diagnosed with an acute depression and now that I am alcohol & drug free I am recovering well enough to stay off antidepressants.  Psychiatric problems I had impaired my ability to serve.  I had at one time paid a visit to see the Chaplain and now I see the healing process I am going through over the violent death I have to cope with my ex-girlfriend M_ S_.  Certain other problems impaired my ability to serve. When I signed the contract it read, Admin/Legal.  I assumed I would be a legal administrator, instead I filed SRB's all day.  I tried to serve and, wanted to, but just couldn't or wasn't able to due to the fact I have so many issues.  I had no satisfaction whatsoever in my enlistment option and worked right across the hallway from where I wanted to be.  I should have gotten a medical discharge because I was not medically qualified to serve with a disease called alcoholism.

Documentation

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

Copy of certificate dated May 3, 2000
Copy of certificate of completion dated May 4, 2000
Character reference dated June 2, 2000
Character reference
Character reference

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		971115 - 980105	COG

Period of Service Under Review:

Date of Enlistment:  980106		Date of Discharge:  990409

Length of Service (years, months, days):

	Active:    01  03  04
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (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:

971008:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

980617:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence from 2200, 14Jun98 to 0719, 16Jun98, violating the curfew of 2200 and missing formation at 0500, 15Jun98 and at 0615, 15Jun98.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990204:	NAVDRUGLAB, Jacksonville, FL, reported applicant’s urine sample, received 990125, tested positive for THC.

990218:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully used THC on or about January 1999.
Awarded forfeiture of $478.00 per month for 2 months, restriction and extra duty for 45 days, reduction to Pvt.  Not appealed.

990226:	Medical evaluation for drug abuse found the applicant to be a drug abuser (isolated incident).   Applicant refused Medical Officer evaluation for drug addictions prior to discharge.

990312:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your illegal use of drugs (THC).

990312:	Applicant advised of his rights and having elected not to consult [or] having consulted 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.  First page not in service record.

000000:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000000:	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 other than honorable conditions.

990312:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your illegal use of drugs (THC) about January 1999. 
990316:	SJA review determined the case sufficient in law and fact.

990322:	GCMCA [Commanding General, II Marine Expeditionary Force] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990330:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement; used THC showing positive on a urinalysis test conducted on 990121 and 990318.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990401:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully used THC March 1999.
Awarded forfeiture of $443.00 per month for 2 months.  Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990409 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 issue 1, the Board found the applicant mistaken in his belief that “under current standards, applicant would not receive the type of discharge he did.”  In fact, the Marine Corps policy on illegal drug use, which the applicant signed, indicating understanding on 971008, is still in effect, and the Zero Tolerance policy strictly enforced.  The applicant violated that policy and Article 112a of the UCMJ, an offense punishable by courts-martial, not once but twice, in January 1999 and again in March 1999.  Relief denied.

The applicant’s next assertion that his behavior and performance in the Marine Corps was due to his immaturity and youth is without merit.  The Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that his immaturity was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The applicant’s current personal problems surrounding drug and alcohol addiction are unfortunate, however, the medical diagnosis following his first incident of documented THC use found him to be a drug abuser, not dependent, and the applicant alleged the use was a one time isolated incident.  Further, the applicant refused medical evaluation for drug dependence prior to discharge, even when informed this refusal would render him not eligible for VA drug rehabilitation post service.  There are no occurrences of alcohol-related incidents noted in the applicant’s records.  Finally, the applicant’s records reflect no diagnoses of any psychoses, depression, alcoholism or drug dependence.  Relief denied.

In the applicant’s claim he assumed he would be a legal administrator, this is not a decisional issue for this Board, however, the applicant’s records show no guarantee of any military specialty other than administrative duties.

In the applicant’s short service in the Marine Corps, he accumulated an adverse counseling entry for Article 86, UCMJ, unauthorized absence, another for deficiencies in performance and conduct, and two nonjudicial punishments for Article 112a, unlawful use of controlled substances.  In spite of this flagrantly unacceptable behavior, the applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.

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.  
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 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.

  

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, unlawful 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