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

 ex-LCpl, USMC
Docket No. MD01-00350

Applicant’s Request

The application for discharge review, received 010126, 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 010822.  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.  My discharge was inequitable because it was based on one isolated incident in 40 months of honorable service with no other adverse action.

2.  My discharge is improper because I went to an Administration Separation Board composed of three officers whom heard my case and recommended retention with no other disciplinary action.

3.  My discharge should be reviewed because I was an excellent Marine shown by my Proficiency and Conduct marks prior to this one isolated incident.

4.  My discharge is improper because, as stated in my character statements, I voluntarily came forward and told my Commanding Officer my involvement in this situation, without my integrity and honesty it would not have been known I was involved in said action.

5.  My discharge is improper because I continued exemplary service with no other infractions for nine months after said incident, which occurred on July 12, 1997 and was six months from my EAS when I was discharged.

6.  My discharge is improper because although recommendations from my Commanding Officer, Officer in Charge, Sergeant Major, SNCOIC, and an Administration Separation Review Panel, all of who recommended retention, was disregarded by the Commanding General of whom had ultimate authority in this matter.

7.  My discharge should be reviewed because I have continued to be an active member of society in good standing after my discharge from the Marine Corps.  I am currently an Aviation Maintenance Technician for American Airlines and have not had any infractions with the law.

Documentation

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

Copy of DD Form 214
Seven pages from applicant's service record
One page from SECNAVINST dated July 11, 1990
Copy of newspaper article, April 1992
Copy of Admin Board Decision Process

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		940304 - 931016	COG

Period of Service Under Review:

Date of Enlistment:  941017		Date of Discharge:  980420

Length of Service (years, months, days):

	Active:    03  06  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  81

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF*

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR with 1 Star

Days of Unauthorized Absence:  None

*No marks found in service record.

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:

940301:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

970818:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully use of LSD on 15Jul97.
Awarded forfeiture of $553.00 per month for 2 months, restriction and extra duties for 45 days, reduction to LCpl.  Forfeiture for 2 months suspended for 2 months.  Not appealed.

970924:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

970925:	Commanding officer recommended process applicant for discharge by reason of misconduct due to drug abuse and recommended retention.  The factual basis for this recommendation was mandatory processing requirement resulting from your nonjudicial punishment on 18 August 1997 for the wrongful use of Lysergic Acid Diethylamide. 

970926:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

971212:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.   

980213:	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 general (under honorable conditions).  By a vote of 2 to 1 the Board recommended the discharge be suspended.

980324:	SJA review determined the case sufficient in law and fact.

980330:	GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 980420 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).

Issues 1 and 5.   The applicant states his discharge was inequitable because it was based on one isolated incident in 40 months of service with no other adverse action, to include 7 months of  good conduct following nonjudicial punishment.  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 applicant used illegal drugs. On 1 March, 1994 the applicant was briefed upon and certified that he understood the Marine Corps’ zero tolerance drug use policy. Drug abuse warranted separation, normally under other than honorable conditions.  The Board will not grant relief on this issue.

Issue 2.  The applicant states his discharge is inequitable because an Administration Separation Board recommended retention. The 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 general (under honorable conditions).  While the board also recommended suspension of the discharge, the NDRB finds no inequity in the fact that the decision authority, CG,  3d MAW, overrode the recommendation and directed the subsequent administrative separation.  Relief denied.

Issue 3.  How well a Marine may have performed and conducted himself prior to any drug use does not negate the Marine Corps policy of zero tolerance for drug abuse.  The applicant’s overall good reputation may have been a contributing factor in his discharge being characterized as General vice Under Other Than Honorable Conditions, which is the norm for LSD users.  Relief denied.

Issue 4.  The applicant states his discharge is inequitable because he voluntarily came forward and admitted to the drug use, and that without his integrity it would not have become known to the command that he used LSD.  The Board disagrees with the applicant’s assertion of integrity.  Based upon the proceedings of the Administrative Discharge Board held on 980213, the NDRB finds that fear of being detected on an urinalysis following the applicant’s drug use was the primary motivation for the applicant’s admission.  It is only by chance that the urinalysis did not detect the presence of LSD.  To make a claim to integrity after the fact of the negative urinalysis changes history using the advantage of hindsight.  To not have used drugs throughout the applicant’s enlistment would have shown true integrity expected of a Marine.  Relief denied.

Issue 6.  The fact that the applicant’s chain of command, to include his Squadron Commander, and the majority of the officers who sat on the Administrative Discharge Board recommended that the applicant be retained for further service speaks well for the applicant’s reputation.  Their support likely contributed much to the applicant being awarded a General discharge vice Under Other Than Honorable Conditions, which is the norm for LSD users.  However, the separation authority in this case was the Commanding General, 3d Marine Aircraft Wing.  His decision to process the applicant for separation, despite subordinate recommendations to the contrary is equitable and proper.  The military service is predicated by adherence to a chain of command.  Each level in this chain is accountable for responsibilities and duties unique to the particular billet.  Most Marines serve honorably and well and therefore earn honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  The Board will not grant relief on this issue.

Issue 7.  The applicant states he is an active member of society in good standing. The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  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.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

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, 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 “afls10.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