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

 ex-PVT, USMC
Docket No. MD00-00955

Applicant’s Request

The application for discharge review, received 000728, 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 010215.  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.  SEE LETTER ATTACHED-EXHIBIT.

Documentation

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

Copy of DD Form 214
Letter from Applicant (2pgs)
Character Reference Letter (Congressional)
Copy of Transcript (2pgs)
Reference Letter
Service Related Documents (127pgs)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		940325 - 940424	COG

Period of Service Under Review:

Date of Enlistment:  940425		Date of Discharge:  950821

Length of Service (years, months, days):

	Active:    01  03  27
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  22

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (2)			Conduct:  4.3 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, Rifle Expert Badge (2nd) 

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:

940324:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

950602:	Counseled for deficiencies in performance and conduct.  [Concerning illegal drug involvement specifically; usage of amphetamines which was identified through urinalysis testing conducted on 950524.  This testing was reported on NAVDRUGLAB MSG 022038Z MAY 95] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950608:	LAV Plt Commander recommended immediate separation by reason of drug use.

950608:	Platoon Sergeant recommended administrative discharge by reason of drug use.

950619:	NJP for violation of UCMJ, Article 112a: Wrongfully use of amphetamines/methamphetamine, a controlled substance on or about 950524, after testing positive on a urine analysis test on 950524, lab batch number L-081.
Awarded forfeiture of $427.00 per month for 2 months, restriction and 
extra duties for 45 days, reduction to E-1.  Not appealed.

950627:	Substance Abuse Chemical Dependency Evaluation indicated applicant was diagnosed as a drug abuser, not dependent.

950717:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

950818:	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.

950724:	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 failure to conform to the standards of the Marine Corps.  On 950602 you were counseled concerning your illegal drug involvement, specifically usage of methamphetamine and on 950607 you received NJP for violation of Article 112a, wrongful use of methamphetamine. 

950815:	SJA review determined the case sufficient in law and fact.

950817:	GCMCA [Commander, 1st Marine Division (Rein) FMF] 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 950821 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 letter, he stated that his wife’s request for a divorce upon his return home following Operation Vigilant Warrior was the proximate cause of his drug abuse, that he does not condone drug use, and requests an upgrade to a general discharge.

In the course of examining the record, the Board found that the applicant deployed to Saudi Arabia on 941009 and returned to CONUS 941105.  The applicant’s urinalysis that tested positive for amphetamine/methamphetamine however occurred six months later, on 950524.  This contradicts the applicant’s assertion that distress over his impending divorce in November, 1994 caused him to “…party with some friends, using drugs.”  Accordingly, relief is denied on this basis.

The applicant states that he does not use drugs and does not condone drug use.  The Board applauds these convictions, however, the applicant’s record reveals a pattern of drug use beginning well before his enlistment.  On 940324, the applicant signed in his own hand the Marine Corps Policy on Illegal Drug Use, and indicated understanding of the Zero Tolerance policy of the Marine Corps.  He further admitted to substantial use of marijuana and of crank (speed), however, signed a statement that he would not use again.  The Board finds this pattern of drug abuse and claims of not using incompatible with the good order and discipline necessary to characterize naval service as general under honorable conditions.  An upgraded to general under honorable conditions would be inappropriate.  Relief, therefore is denied.

The applicant requests an upgrade to general under honorable conditions, to be a good citizen, to apply for government work and to admit freely that he served in the United States Marine Corps.  However the applicant was convicted at NJP of unlawful use of amphetamine/methamphetamine, and in a signed statement, the applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating Article 112a, unlawful use of controlled substances and requested an administrative discharge under other than honorable conditions, waiving all his rights except to obtain copies of his discharge proceedings.  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 based upon his current enlistment, 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.  Relief denied.

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. While the Board encourages the applicant's academic efforts and church membership, his contributions 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, 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