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

ex-Cpl, USMC
Docket No. MD01-00502

Applicant’s Request

The application for discharge review, received 010308, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.  Subsequent to the application the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010906.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but found an inequity in the characterization of the former service member’s service.  The Board’s vote was three to two that the character of the discharge shall change.  The discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I strongly feel that my husband's discharge was inequitable because it was based on one isolated incident in five and a half years of service with no other adverse action on his part.  When the Board reviews his service record brief it will show that he was promoted to sergeant with four and a half years of service.  His average evaluation was 4.7 and 4.8.  This by itself reflects that his five and a half years of service was outstanding prior to his drug-related incident.  During my five years of marriage to my husband, we noticed that other marines received an administrative discharge under general conditions for similar misconduct, but my husband received an other than honorable discharge.  I request strongest consideration by the Board to overturn his discharge to a general discharge under honorable conditions.

Applicant mark the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION"  None were found.

Documentation

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

American Legion's comments dated August 8, 2001
Copy of DD Form 214
Letter from former service member to Commanding General
Copy of former service member's certificate of death
Copy of former service member's certificate of marriage
Letter from Department of Veterans Affairs dated December 20, 1999
Copy of police record check dated April 19, 2000
Copy of administrative decision from Department of Veterans Affairs dated March 29, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		930107 - 930322	COG

Period of Service Under Review:

Date of Enlistment:  930323		Date of Discharge:  980916

Length of Service (years, months, days):

	Active:    05  05  24
	Inactive:  None

Age at Entry:  18			Years Contracted:  6

Education Level:  12			AFQT:  55

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages: Enlisted performance report(s) were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM, MM, SSDR, Letter of Appreciation

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:

930106:	Former service member briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

960206:	Counseled for deficiencies in performance and conduct.  [Unsatisfactory progress for weight loss.  You have not maintained a goal of .7 pounds per month to attain a target weight/inches of 209 pounds as prescribed by medical officer].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960220:	Former service member notified eligible but not recommended for promotion to Sergeant for the month of December because "weight control".

980713:	NAVDRUGLAB, Jacksonville, FL, reported former service member’s urine sample, received 980706, tested positive for THC.

980717:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongful use, possession of a controlled substance, to with: THC.
Awarded forfeiture of $689.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Cpl.  Not appealed.

980803:	Former service member notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

980817:	Former service member advised of his rights and having consulted 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.

980820:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was former service member's nonjudicial punishment for violation of Article 112A, UCMJ, wrongful use of marijuana. 

980827:	SJA review determined the case sufficient in law and fact.

980827:	GCMCA [Commanding General, Marine Corps Logistics Base, Albany] directed the former service member'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 former service member was discharged on 980916 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 but not equitable (D and E).

Based on the applicant’s service record and documentation provided, the Board found relief is warranted, based on equity.  Prior to the applicant’s misconduct, he had average proficiency and conduct marks of 4.7/4.8 and one Excellent-Outstanding fitness report as a Sergeant, with no NJPs, after five years of service.  After failing a PFT while a Sergeant, he was diagnosed with heart problems, which later contributed to his death.  Although an Other Than Honorable discharge is within the legal grounds of the GCMCA, the board determined that, based on the applicant’s service record, a more equitable discharge would be General (under Honorable conditions).  Accordingly, the Board voted to grant relief in the form of an upgrade of the applicant’s characterization of service to General (under Honorable conditions). 

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