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

ex-Pvt, USMC
Docket No. MD01-00129

Applicant’s Request

The application for discharge review, received 001107, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010426.  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.  Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on January 12, 2001 and the following comments are hereby submitted.

Background: 	The applicant enlisted in the United States Marine Corps on March 14, 1994 for a period of 3 years.  He received a General Discharge on January 8, 1997 due to Misconduct - Drug abuse (Board required but waived).

Analysis: The applicant received a Special Court Martial on April 26, 1996 for wrongful use of amphetamines.  He received 45 days confinement and reduction to pay grade El.  The applicant served his confinement and according to the record was returned to duty.  He was not processed for discharge due to drug abuse until 7 months after the completion of his sentence.  He was then processed 3 months prior to the end of his enlistment.  The record does not reflect any further drug abuse or disciplinary action of any kind.

The applicant has submitted references that reflect he is a hard worker, reliable, cooperative and a true asset to his company.  The applicant credits the United States Marine Corps for instilling in him discipline, dedication and maturity.  As witnessed by a deputy probation officer, the applicant is highly motivated and provides a positive role model.  The applicant is currently employed as a security officer tasked with a high level of responsibility and exhibits a high level of integrity.

Contentions: We contend that to discharge the applicant 7 months after he completed his sentence for drug abuse was improper.  There is no further evidence of disciplinary problems with the applicant.  To require an individual to perform for an additional 7 months, then discharge him 3 months prior to the end of his enlistment based on his previous indiscretion is both improper and unfair to the individual.

Since leaving the service, the applicant has proven himself to be an asset to his community.  His employment as a security officer shows the trust and reliability his employers have in him.

We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be upgraded to Honorable.

Documentation

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

Copy of DD Form 214
One page applicant's service record
Character reference dated December 8, 1999
Character reference dated December 15, 1999
Character reference dated December 13, 1999
Character reference dated January 5, 2000
Statement/letter from applicant dated October 30, 2000
Character reference dated October 27, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		931209 - 940313	COG

Period of Service Under Review:

Date of Enlistment:  940314		Date of Discharge:  970108

Length of Service (years, months, days):

	Active:    02 09 25
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rank:  PX3

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (7)			Conduct:  3.8 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, JMUC, SSDR, Letter of Appreciation 

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS0/MISCONDUCT, authority:  MARCORSEPMAN 6210.5.

Chronological Listing of Significant Service Events:

931203:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

960228:	NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 960216, tested positive for MDA/MDMA (ecstasy).

960229:	Counseled for deficiencies in performance and conduct.  [Positive test for MDA/MDMA in your urine from NAVDRUG LAB message 282007Z dated Feb 96.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960426:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 112A
	Specification: Wrongfully use methylenedioxyamphetamine between 29Jan96 and 5Feb96.
	Findings:  to Charge I and specification, guilty.  
	Sentence: Confinement for 45 days, reduction to Pvt.
	CA 960717:  Sentence approved and ordered.

960426:	Applicant to confinement.

960531:	Applicant from confinement.

960624:	Medical dependency evaluation for drug abuse found the applicant to be a hallucinogen abuser, not drug dependent.

960913:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to drug abuse.

960913:	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.

961218:	Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your wrongful use of methylenedioxyamphetamine (Ecstasy) between 29 January and 5 February 1996. 

961218:	SJA review determined the case sufficient in law and fact.

961218:	GCMCA [Commander, 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 970108 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 issues, his counsel argued as justification for an upgrade that the applicant was discharged seven months after his release from confinement imposed by a Special Court-martial, and that this release was unfair as the applicant at that time had only three months remaining to complete his enlistment.

The record shows the applicant was released from confinement on 960531 and was discharged on 970108, just over seven months later.  The Board found that discharge proceedings that are not required to be expeditious in nature, may in fact require this period of time.  The Board noted that in the course of this seven months, the applicant was afforded medical evaluation for his drug abuse, was notified by the command of the intent to process him for discharge, was advised of his rights and given opportunity to consult with qualified counsel, that his entire chain of command was allowed to participate in the decision to recommend discharge or retention, from the Platoon Sergeant level, through Platoon Commander, through Company Commander, through Battalion Commander, through Regimental Commander – who personally interviewed the applicant before recommending his discharge to the Commanding General.  This recommendation was then further reviewed by the Command Staff Judge Advocate before the Commanding General directed the discharge on 961218.  Affording the applicant maximum benefits of the command discharge recommendation and review required deliberate staffing at each command level and the Board finds the time elapsed to be not excessive.  Relief on this basis is denied.

The applicant’s counsel also argued the discharge was unfair as the applicant was discharged three months before his EAS.  This is an error in fact on the part of counsel.  The record clearly shows the applicant wrote “four” years in his own hand on the USMC “Statement of Understanding” selecting his length of active duty and his occupational field, 0300-Infantry, and signed and dated that document on 940304.  Further, the record reveals an enlistment for a period of four years on the DD Form 4/3, Enlistment Contract which the applicant signed and dated on 940314.  When the applicant was discharged for Misconduct on 970108 he had then completed 2 years 9 months and 25 days of his four year obligation.  Relief on this basis is denied.

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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  The applicant's efforts need to be more encompassing than those provided.  While the Board applauds the applicant’s employment record and it is clear he is a responsible and valued employee the applicant should have produced evidence of continuing educational pursuits, 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.  Representation at a personal hearing is not mandatory, but is strongly recommended.  This representation need not be a lawyer, but may be any person of stature and good standing in the community including the various veterans’ organization.

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