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

ex-Pvt, USMC
Docket No. MD01-00055

Applicant’s Request

The application for discharge review, received 001013, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010615.  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-Drug abuse (with admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, and continue to support the FSM's request for an upgrade of his Other Than Honorable discharge to a general Under Honorable Conditions, or Honorable.

The above request is based on the following; it well known that a FSM cannot go back and change the mistakes that have been made, but they may become a positive and productive member of society, and that such post-service changes should be given due consideration.

The record reflects that (applicant) served from April 27, 1987 to June 24, 1988.  Then during the period of service from May 10, 1988 to June 24, 1988, the record notes the actions of (applicant), with the concluding actions of the United States Navy by reason of misconduct.  Post service information show the FSM to have become an active and productive member of society, one who is respected by his peers.

Active service performance reports show all high marks in proficiency of 4.4, 4.3, 4.3, and then a 2.5 for the time period of the inappropriate action.  This FSM had an outstanding record, made one mistake and is now to pay for that mistake for the rest of his life.  The FSM had an outstanding work record, made one mistake, received no counseling from his unit, was allowed no probation or rehabilitation, and was given an Other Than Honorable (OTH) discharge.

If the Navy hid counseled the FSM, and if the Navy had offered probation and rehabilitation (P&R), and the FSM continued to show misconduct then this service would agree with the issuance of the OTH discharge.  But since this was the first offense, and the Navy created an impropriety by not allowing P&R or counseling the FSM, and since the FSM was an outstanding member prior to the incident we believe and maintain that a General Under 14onorable conditions would have been a more appropriate discharge.

In light of (applicant's) good service and the credible statements of his peers and coworkers, and the addition of a statement from his local police agency showing 15 years without a violation, we ask that clemency used in this instant case with the change being granted in the manner of a General Under Honorable conditions, as requested by the FSM.

We ask for the Board's careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

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

Copy of DD Form 214
Police record check dated December 2, 1999
Character reference, undated
Character reference, undated
Copy of newspaper article

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		870221 - 870426	COG

Period of Service Under Review:

Date of Enlistment:  870427		Date of Discharge:  880624

Length of Service (years, months, days):

	Active:    01  01  28
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  51

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (4)			Conduct:  3.9 (4)

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-Drug abuse (admin discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

870219:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

880510:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully use marijuana, a schedule I controlled substance on 14Apr88.
Awarded forfeiture of $335.00 per month for 1 month, restriction and extra duties for 30 days, reduction to Pvt.  Not appealed.

880607:	SJA review determined the case sufficient in law and fact.

880610:	GCMCA [Commanding General, I Marine Expeditionary Force, FMF] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Partial discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 880624 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 applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.

Additionally, the applicant states that he was not afforded probation, rehabilitation or counseling.  A part of the applicant’s discharge package is missing from the applicant’s discharge package and service record, therefore, the Board presumes regularity on the behalf of the government.  If the applicant desires drug rehabilitation, he is encouraged to contact the nearest Veteran’s Administration Office for eligibility.  No relief will be granted based on this issue. 

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) 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 encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the 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 P1900.16C), Change 4, effective 29 Jul 87 until 26 Jun 89.

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