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

ex-PVT, USMC
Docket No. MD01-00690

Applicant’s Request

The application for discharge review, received 010420, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to secretarial authority.  The applicant requested a documentary record discharge review.  The applicant listed NYS Division of Veterans Affair as his representative on the DD Form 293.
 
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-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  It is extremely rare that a enlisted member would receive an Other Than Honorable discharge for one Article 15.  While I am remorseful and regret my action, I believe that the punishment is too severe.

2.  My over all period of service was very good as evidenced by: 1, Meritorious promotion 2, Cert. of Excellence from 285 Club, 3, two certificates of Completion from training courses.

3.  I have excellent post service.  I have not been arrested or convicted of any crimes, I am married, employed, attend college and am active in my Church.

Documentation

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

Statement from Applicant (2pgs)
Drug Abuse Laboratory Report
Reference Letter from C.L. P___, M.D
Letter of Recommendation from NYC Technical College
Character/Employment Reference Letter from Pastor
Employment Reference Letter from Dr F___ R. A____, Principal of Public School 206
Copy of Security Guard License
Copy of Security Guard Training Certificate 
Copy of DD Form 214
Copy of Medical Officer Drug Abuse Evaluation
Service Related Documents (38 pgs)
Medical Related Documents (5)
Statement from B____ P. B____
Statement from C____ A. T___
Copy of Record of Authorization to Search
Copy of Separation Policy for Drug Offenders
Statement from CPL R___ A. C____ (2pgs)
Statement from CPL R___ G_____ (2pgs)
Statement from SGT W___ F. B____, JR (2pgs)
Statement from SGT M___ C. R____, JR (2pgs)
Statement from SGTMAJ D___ E. C____, JR (1pg)
Statement from 1STLT R___ S. B____, JR (2pgs) 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		901107 - 910909	COG

Period of Service Under Review:

Date of Enlistment:  910910		Date of Discharge:  930106

Length of Service (years, months, days):

	Active:  01  03  27
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  49

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (6)		Conduct:  3.9 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Sharpshooter Badge, NDSM 

Days of Unauthorized Absence:  None 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

901106:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

920909:	NJP for violation of UCMJ, Article 112a: Wrongful use, possession of a controlled substance on or about 920716, PFC D____ wrongfully used marijuana, a controlled substance, in the Bachelor Enlisted Quarters bldg 430, aboard MCAS Futenma, Okinawa, Japan.
Awarded forfeiture of $363.00 per month for 2 months, restriction and 
extra duties for 45 days, reduction to E-1.  Appealed.

920925:	Appeal denied.

921026:	Counseled for deficiencies in performance and conduct.  [Concerning my illegal drug involvement; specifically, possession, usage of an illegal substance, marijuana, through my confession with an NIS investigation]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921109:	Director, Substance Abuse Counseling Center indicates after a personal interview and following a medical officer's assessment, a diagnostic impression of drug abuse was indicated.  The medical diagnosis documented that there was no evidence of drug dependence.

921119:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

921119:	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 include written statements in rebuttal to this proposed separation.

921127:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation is his misconduct due to drug abuse, as evidenced by his non-judicial punishment on 920909 for wrongful use of marijuana.  His failure to conform to Marine Corps standards and unwillingness to adhere to the Marine Corp policy regarding drug abuse make any attempt at rehabilitation inappropriate. 

921209:	SJA review determined the case sufficient in law and fact.

921211:	GCMCA [Commander, 1st Marine Aircraft Wing] 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 930106 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 stated the punishment is too severe.  The applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The applicant’s discharge was processed in accordance with Marine Corps regulations and the punishment he received was equitable.  Relief denied.

Issue 2.  The applicant stated his overall period of service was very good.  The Board determined that the applicant’s performance prior to his drug abuse doesn’t mitigate his use of illegal drugs.  The discharge was proper and equitable.  Relief denied.

Issue 3.  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.  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 P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

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