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

ex-Pvt, USMC
Docket No. MD01-00474

Applicant’s Request

The application for discharge review, received 010227, requested that the characterization of service on the discharge be changed to General/under Honorable conditions.  The applicant requested a personal appearance hearing in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011108.  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, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  The discharge is improper because the preservice civilian conviction, properly listed on the enlistment documents, was used in the discharge proceedings.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980729 - 981213	COG

Period of Service Under Review:

Date of Enlistment:  981214		Date of Discharge:  990917

Length of Service (years, months, days):

	Active:    00  09  04
	Inactive:  None

Age at Entry:  25			Years Contracted:  4

Education Level:  12			AFQT:  56

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.5 (2)			Conduct:  3.5 (2)

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, authority:  MARCORSEPMAN 6210.5.

Chronological Listing of Significant Service Events:

980713:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

980724:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver granted.

990429:	NAVDRUGLAB, Jacksonville, FL, reported applicant’s urine sample, received 990422, tested positive for cocaine.

990505:	Counseled for deficiencies in performance and conduct.  [Illegal usage of a controlled substance, cocaine as verified by the NAVDRUGLAB message R 291441Z Apr 99 ZYB.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990506:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully used cocaine between 1Apr99 and 15Apr99.
Awarded forfeiture of $443.00 per month for 2 months, correctional custody for 30 days.  Applicant failed to file an appeal in a five day period.

990629:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent, isolated incident.

990722:	NJP for violation of UCMJ, Article 91:
Specification: Willfully disobeyed an order from Sgt to go to sleep on 10Jul99.
Awarded forfeiture of $223.00 per month for 1 month, restriction and extra duties for 14 days.  Extra duty suspended for 6 months. Not appealed.

990823:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse.

990823:	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.

990823:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse.  The factual basis for this recommendation was your use of cocaine as identified by positive unit urinalysis.
 
990913:	SJA review determined the case sufficient in law and fact.

990913:	GCMCA [Commander, Marine Corps Base, Camp Lejeune] directed the applicant's discharge under Other Than 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 990917 under other than honorable conditions for misconduct due to drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1.  The applicant states, the discharge was improper because the preservice civilian conviction, properly listed on the enlistment documents, was used in the discharge proceedings.  The Board determined this issue has no merit.  The applicant’s urine sample submitted to the Navy Drug Laboratory, Jacksonville, FL. On 990422, tested positive for cocaine.  This urinalysis test was four months after the applicant enlisted into the Marine Corps.  Subsequently the applicant went to NJP, on 990506, for the positive urinalysis test for cocaine between 990401 and 990415.  The basis for the applicant’s Commanding Officer’s recommendation for discharge was the positive urinalysis mentioned above.  Use of illegal drugs requires mandatory processing for separation.  The discharge was proper and equitable.  Relief denied.

The following is provided for the benefit of the applicant.  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 any of these documents.  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.

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.  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.  

C.  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.

D.  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