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

 ex-LCpl, USMC
Docket No. MD01-00475

Applicant’s Request

The application for discharge review, received 010305, 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, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My name is (applicant).  I served in the Marine Corps for three and a half years.
My reason for this letter is a review of my discharge.  I felt that my discharge was not exactly fair.  I tested positive for marijuana after the Christmas 96 in 1998.  I stayed in the Marine Corps l year and 2 months after the incident.  In addition, I never tested positive for it again.  I was fit for full duty, never fell out of P.T, I was still allowed to work on gear.  I was sent to formal schools.  I never had a page 11 or any NJP'S.  My Battalion Commander even dropped the charges and had an investigation on our urinalysis program.  I was never given the opportunity for retention in the Corps.  I wanted to stay in the Corps; I only had 6 months left.  Was I that intolerable that I couldn't stay in. I wasn't a bad Marine.  I was awarded a good conduct medal, recommendation for reenlistment from my Company Commander.  This issue is very important to me.  I need to upgrade my discharge so I can provide for my family better.  My success depends on my discharge.  I wavered my board for discharge because I tried so long to prove that I was a good Marine.  But my fighting spirit was crushed.  I was constantly teased and harassed, they put all the drug pops in one room where all the harassing was centralized.  Every time a new Marine came to the unit, they were encouraged to stay away from me.  I was accused of stealing from my sergeant who at the time was a corporal.  My Service Record Book speaks for itself.  Your consideration in this matter is highly appreciated.
Sincerely,

Documentation

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

Copy of DD Form 214
Letter to Commanding Officer from applicant's parents dated August 17, 1999
Copy of court-martial action sheet dated March 29, 1999

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960408 - 960818	COG

Period of Service Under Review:

Date of Enlistment:  960819		Date of Discharge:  000204

Length of Service (years, months, days):

	Active:    03  05  16
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  52

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (6)			Conduct:  4.4 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, GCM

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:

960326:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

990124:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement, marijuana usage identified through urinalysis confirmed by NAVDRUGLAB batch number J9901512].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990108:	NAVDRUGLAB Jacksonville, FL reported applicant’s urine sample, received 990105, tested positive for THC.

990209:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.  

990329:	Court-Martial Action Sheet: The charge in the referenced case is hereby withdrawn and dismissed without prejudice due to recent discovery of possible misconduct by a member of the command's urinalysis program.  The allegations of misconduct go directly to the credibility of the command's urinalysis program, and thus need to be fully investigated prior to continuing with prosecution in the referenced case.  Additionally, and equally important, the same service member who is now under investigation has indicated he will invoke his 5th Amendment rights if called to testify at the referenced trial.  He is essential witness, and would therefore qualify as unavailable under R.C.M. 906.  The prosecution can not currently proceed without first taking steps to make said witness available.  [Extracted from supporting documents submitted by applicant].
	
990422:	Counseled for deficiencies in performance and conduct.  [Lack of maturity and poor judgment.  On the evening of 990417 you were involved in an alcohol-related incident at TT1 that resulted in you being charged for being drunk and disorderly].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990819:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement, marijuana usage identified through urinalysis confirmed by NAVDRUGLAB].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990910:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990910:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

990910:	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 incident of illegal drug use as identified in NAVDRUGLAB Jacksonville FL message 081735Z Jan99. 

991105:	Applicant waived his right to an Administrative Discharge Board.

000124:	SJA review determined the case sufficient in law and fact.

000124:	GCMCA [Commander, 2d Marine Division, II Marine Expeditionary Force] 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 000204 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).

The applicant states his discharge was not fair due to his overall service record and dismissal of court martial proceedings due to a positive urinalysis for THC.  The dismissal of charges triable by court-martial does not preclude the initiation of administrative separation proceedings at a later date. The applicant used illegal drugs.  Drug abuse warranted processing for separation.  The applicant’s service record notes two derogatory counseling entries for substance abuse, and numerous entries not recommending him for promotion.  His section chief, platoon and company commander  rated the applicant a below average Marine in August, 1999.  On 991105 the applicant waived his right to an Administrative Discharge Board, during which he could have contested the equity of the pending separation.  

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