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

ex-PVT, USMC
Docket No. MD01-00691

Applicant’s Request

The application for discharge review, received 010417, 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.

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.  Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.  Due to one mistake during my military career, I have lost any and all benefits of serving in the United States Military (G.I. Bill, VA., ect).

2.  My average conduct and efficiency/behavior and proficiency marks were good (or pretty good).  During the coarse of my enlistment, my average pro/con marks in service were 4.2/4.2.

3.  My record of NJP's/Article 15's indicates only isolated or minor offenses.  If you look at the two NJP offenses I had, you will see that even though they were held at different times, the date of offense on both, was the same.

4.  I received awards and decorations, I received the National Defense Service Medal, the Southeast Asia Service Medal w/star, and a Letter of Appreciation for the job I did while stationed in the Persian Gulf.

Documentation

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

Employment/Character Reference Letter
Character Reference Letters (2) 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		890711 - 900701	COG

Period of Service Under Review:

Date of Enlistment:  900702		Date of Discharge:  921023

Length of Service (years, months, days):

	Active:  02  03  22
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  59

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (7)		Conduct:  4.1(7)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge, NDSM, SASM 

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:

890711:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

920710:	NAVDRUGLAB [SAN DIEGO, CA], reported applicant’s urine sample, received 920702, tested positive for COCAINE.

920724:	NJP for violation of UCMJ, Article 134: Did on or about 0440, 920613 at PMO Main Gate, was stopped by PMO for an I.D. Card check, upon inspection SNM was found with two (2) Military I.D. Cards, one card the date of birth, date of issue and the expiration date had been changed. 
Awarded forfeiture of $440.00 per month for 2 months, restriction for 45 days (suspended for 6 months), reduction to E-2.  Not appealed.

920901:	Applicant waived his rights to a hearing before an Administrative Discharge Board. 

920917:	NJP for violation of UCMJ, Article 112a: Did on or about 0830, 920613 aboard or in the surrounding community of MCB Camp Pendleton, wrongfully and willfully use cocaine.
Awarded forfeiture of $363.00 per month for 2 months, restriction and 
extra duties for 45 days, reduction to E-1.  Not appealed.

921006:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

921006:	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.

921007:	Evaluation for substance abuse/dependence found the applicant to be not drug dependent.

921007:	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 NJP which evidenced the illegal use of drugs.  

921014:	SJA review determined the case sufficient in law and fact.

921014:	GCMCA [Commanding General, 1st FSSG] 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 921023 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 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.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.

Issues 2 and 3.  The Board disagrees with the applicant’s assertion that his overall service record warrants an honorable discharge.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on two occasions.  His use of illegal drugs warranted processing for administrative separation, normally under other than honorable conditions.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service.  An upgrade to honorable would be inappropriate.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.   In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.

Issue 4.  The receipt of commendatory awards and favorable performance and conduct evaluations during the applicant’s tour does not guarantee him an honorable discharge. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  Less than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by his use of illegal drugs.  The applicant’s conduct falls short of that required for an honorable characterization of service.  

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