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

 ex-PVT, USMC
Docket No. MD01-00355

Applicant’s Request

The application for discharge review, received 010125, 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: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Drug abuse (with admin discharge board), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Based on the information provided in service record book character references, educational achievements, exemplary post-service conduct, decoration, medals badges citations and campaign ribbons awarded and authorized.

2.  Priority Statement: The O.T.H Discharge I received was based on the events that took place between on or about 860401 and 861017.

Documentation

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

Copies of DD Form 214 (4)
Copy of Military Occupational Specialties

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		780210 - 820513	HON
	Inactive: USMCR(J)		770624 - 780209	COG

Period of Service Under Review:

Date of Enlistment:  820514		Date of Discharge:  861017

Length of Service (years, months, days):

	Active:  04  05  04
	Inactive:  None

Age at Entry:  19			Years Contracted:  6 

Education Level:  12			AFQT:  46

Highest Rank:  CPL

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (11)		Conduct:  3.4(11)

Military Decorations:  None

Unit/Campaign/Service Awards:  GCMwb*, SSDRw3b*, NUC, Meritorious Mast(2), Rifle Marksman Badge

Days of Unauthorized Absence:  47

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

UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (with admin discharge board), authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

820514:	Reenlisted at 7th MTBn 1st FSSG Camp Pendleton, CA for 6 years.

860204:	NJP for violation of UCMJ, Article 112a: In that Cpl P___ was found positive for the use of cocaine by a random urinalysis conducted on or about 851204 on or about Marine Corps Base, Camp Pendleton, CA.
Awarded forfeiture of $400.00 per month for 2 months [forfeiture of $400.00 pay per month for 1 month (suspended for 3 months)], restriction for 45 days, extra duties for 30 days (suspended for 3 months), reduction to E-3.  Not appealed.

860425:	NJP for violation of UCMJ, Article 112a: In that Cpl P___ was found positive for the use of cocaine by a random urinalysis conducted on or about 860313 on or about Marine Corps Base, Camp Pendleton, CA.
Awarded forfeiture of $358.00 per month for 2 months, restriction and extra duties for 45 days (suspended for 6 months), reduction to E-2.  Not appealed.

860429:	Medical evaluation for drug abuse found the applicant to be non dependent.

860604:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

860604:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was respondent's use of illegal drug as evidenced by three non-judicial punishments for drugs and two on your current enlistment for use of cocaine. 

860708:	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.

860812:	SJA review determined the case sufficient in law and fact.

860813:	GCMCA [Commanding General] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

861016:	NJP for violation of UCMJ, Article 86: UA (AWOL) 0731, 860828 until 1445, 861014[46days/S].
Awarded forfeiture of $300.00 per month for 2 months, restriction and 
extra duties for 30 days (suspended for 6 months), reduction to E-1.  Not appealed.

861022:	Applicant surrender to military authorities on 861014 (1445) at TransCo, 7thMTBn, 1stFSSG, CamPen, CA.  Returned to military control 861014 (1445).  Retained on board for disciplinary action.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 861017 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).

Issue 1.  The Board found no evidence of service record character references, educational achievements, exemplary post service conduct, decorations, and/or awards that warranted an upgrade to the applicant’s discharge.   The board found it curious that the applicant made a claim to exemplary post service conduct since the applicant has been recently incarcerated.  Relief on this issue is denied.

Issue 2.  The applicant states that his discharge was based on events that occurred in a six month period in 1986.  His discharge was based on receiving three non-judicial punishments for drug use which therefore required separation (A).  Such use of drugs mandated discharge under other than honorable conditions.  The applicant’s discharge characterization accurately reflects his service to his country.  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 clemency, 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 P1900.16C), Change 2, effective 15 Apr 84 until 28 Jul 87.

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 [ e.g., Article 86, unauthorized absence for more than 30 days].

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