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

ex-LCpl, USMC
Docket No. MD01-00669

Applicant’s Request

The application for discharge review, received 010409, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Bethlehem, PA.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010928.  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

Hi my name is R--- R---Jr. and I was a Marine who started my career in the military on October 07 of the year 1997. 1 did boot camp, then schooling and then headed to Hawaii for my duty station.  I got there and I loved it and me and my wife started a family.  I was an outstanding Marine and was promoted in the ranks quickly.  Then came February 27th, the day I went home to Bethlehem, PA for ten days and returned on March 5th of 2000. 1 had a urinalysis test and thought nothing of it.  Then two weeks pass and by this time I had already gone to the woods in Hawaii to train and I get back to the motor pool and here the 1stSGT was looking for me.  I go to his office with gunny and he starts reading me my rights and telling me that I popped on the urine test for cocaine.  I said I never did cocaine in my life and had token a couple hits of marijuana the first day I got on leave and that was it.  Now by this time I am talking to the lawyer on base and she's not really believing me and telling me to say different things.  Two days before the trial she calls me and says a new military law was passed and that they cant convict me on urine alone.  So I go from a Bad Conduct Discharge back to an OTH in an NON JUDICIAL PUNISHMENT again so by this time the marijuana came into the case and I found out the cocaine gets dropped and the marijuana gets hit on me with no urine sample.  I told the lawyer I said it out of fear because I didn't really understand why cocaine but then I remember that Saturday morning me and my brother got stopped by the cops and he passed me cocaine and it fell out the bag but then I grabbed it and sweating from being scared it most of went through my pores or something and I popped for it when I got back.

Issue 1) I don't understand why I got kicked out of the service when I was one of the few that loved it and wanted to stay and accept getting put back in the ranks.  I got kicked out for Marijuana when it was never proven by the urine test.  I had brought the marijuana situation up and felt like I had said the truth all along like I was taught to do.

Issue 2) My next issue is that while I was going threw this situation there were Marines being kept in the Marines with little punishment and it still gob’s on till this date.  Them Marines are nasty and don't take pride in what they do.  I on the other hand loved what I did and had 33 great months of service.  I think it was inequitable because it was based on one isolated incident with no other adverse actions.

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:   USMC		None
	Inactive: USMCR(J)		970730 - 971007	COG

Period of Service Under Review:

Date of Enlistment:  971008		Date of Discharge:  000727

Length of Service (years, months, days):

	Active:    02  09  20
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  34

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (9)			Conduct:  4.4 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge 

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:

970728:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

000316:	NAVDRUGLAB [SAN DIEGO, CA], reported applicant’s urine sample, received 000313, tested positive for [cocaine].

000322:	SACC evaluation report indicates applicant does not meet the criteria for substance abuse or dependency.

000404:	Counseled for deficiencies in performance and conduct.  [Illegal dug involvement, cocaine usage through urinalysis confirmed by NAVDRUGLab San Diego CA msg 162019z Mar 00].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000609:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, NAVDRUBLAB San Diego, CA 162019Z Mar 00.
Awarded forfeiture of $657.00 per month for 2 months (forfeiture of $300.00 pay per month suspended), restriction and extra duties for 45 days, reduction to E-3.  Not appealed.

000623:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000623:	Applicant advised of his rights and having elected 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.

000623:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the respondent's wrongful use of marijuana.  

000705:	SJA review determined the case sufficient in law and fact.

000710:	GCMCA [Commanding General] 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 000727 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 was discharged for wrongful use of a controlled substance.  The applicant admitted to the use of illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions. The applicant, after consulting with legal counsel, waived his right to contest the characterization of service at an administrative hearing while being processed for discharge on 000623. Under Other Than Honorable conditions most clearly describes the applicant’s characterization of service. The discharge was proper and equitable.  Relief denied.

Issue 2.  The applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  Despite the applicant’s perception that other Marines continue to serve who do not take pride in their work, the applicant is responsible for his own actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.

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