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

ex-Pvt, USMCR
Docket No. MD01-00426

Applicant’s Request

The application for discharge review, received 010213, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance discharge review.  The applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 011025.  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 at the time of issue.  The Board’s vote was three to two that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct, authority: MARCORSEPMAN, PAR. 6210.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  The applicant requested an upgrade to under honorable conditions (general) based upon his post-service conduct.

Documentation

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

Certificate of award, 910523
Dean’s List award, 2x
Model UN class selection, 931012
College transcript, 3x
Character reference letter, 6x
Bonus letter, 950713
Employment reference letter, 3x
Student mentor, letter of appreciation
Health law curriculum
Ranking Scholar, Pace Law School
Isaac Rubin Outstanding Clinical Student Award
White Plains Bar outstanding clinical law student award

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  840615		Date of Discharge:  860416

Length of Service (years, months, days):

	Active:    00  04  25
	Inactive:  01  05  06

Age at Entry:  18			Years Contracted:  8

Education Level:  11			AFQT:  63

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (7)			Conduct:  3.2 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksmanship Badge

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:

840614:	Enlistment contract into the USMCR documents acknowledgement of the requirement to participate in 48 scheduled drills and not less than 14 days of annual training per year for 6 years upon completion of initial active duty training.

840725:	Applicant to active duty for initial training.

841003:	Drug usage confirmed by urinalysis testing conducted on 27Jul84.

841219:	Applicant released from initial tour of active duty training.

850228:	NAVDRUGLAB, Jacksonville, FL, reported applicant’s urine sample, tested positive for THC.  [Extracted from CO letter dated 10 March 1986].

850414:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongful use of a controlled substance to wit: wrongfully possess some amount of THC during a urine sample test. REF: NAVDRUGLAB Jacksonville, FL message P 281018Z Feb 85.
Awarded forfeiture of $100.00 per month for 1 month, reduction to Pvt.  Not appealed.

850414:	Counseled for deficiencies in performance and conduct.  [Identification as a habitual user of a controlled substance (THC 4Feb85) and use of controlled substance].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

850915:	Counseled for deficiencies in performance and conduct.  [Unsatisfactory participation in SMCR due to my unexcused absences from drills on 850601 (2) and 850602 (2)].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

851006:	Counseled for deficiencies in performance and conduct.  [Unsatisfactory participation in SMCR due to my unexcused absences from drills on 850922 (2)].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

851103:	Applicant informed eligible but not recommended for promotion to PFC for the months of October and November because of my unsatisfactory participation in SMCR.

851208:	Applicant informed eligible but not recommended for promotion to PFC for the month of December because of my unsatisfactory participation in SMCR.

860128:	NAVDRUGLAB, Jacksonville, FL, reported applicant’s urine sample, tested positive for THC.  [Extracted from CO letter dated 10 March 1986].

860209:	Counseled for deficiencies in performance and conduct.  [Use of controlled substance, ie THC].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Entry not signed due to excessive unexcused absences from scheduled drills.

860209:	Applicant identified concerning illegal drug involvement, testing positive in a urinalysis test conducted by this unit for THC in accordance with NAVDRUGLAB, Jacksonville, FL message 281016Z Jan86.

860210:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

860302:	Applicant reduced to Pvt due to unsatisfactory participant in SMCR.  Entry not signed due to excessive unexcused absences from scheduled drills.

860303:	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.

860310:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was illegal drug abuse.  

860406:	Counseled for deficiencies in performance and conduct.  [Unsatisfactory participation in the SMCR due to unexcused absences on 860329 (2), 860330 (2), 860331 (2)].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Entry not signed due to excessive unexcused absences from scheduled drills.

860406:	Applicant informed eligible but not recommended for promotion to PFC for the month of April because of unsatisfactory participation of the above mentioned unauthorized absence in the SMCR.  Entry not signed due to excessive unexcused absences from scheduled drills.

860409:	GCMCA [Commanding General, 4th Marine Division (Rein)] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

860401:	SJA review determined the case sufficient in law and fact.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 860416 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 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.  It was clear to the Board that the applicant had accomplished much in his education and occupational goals.  However, the Board concluded that the seriousness of the applicant’s continued use of illegal drugs evidenced by three positive urinalysis in an eighteen month period outweighed the positive aspects of his post-service accomplishments to warrant an upgrade to his discharge. 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 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