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

 ex-Pvt, USMC
Docket No. MD01-00806

Applicant’s Request

The application for discharge review, received 010522, 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 011218.  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 (verbatim)

1.  I am writing to the board in hope of getting my discharge changed from "other than honorable" to "honorable”. First of all, I was separated from the United States Marine Corps for failing a unit urinalysis which took 5 months to receive the results to.  I admit, I was wrong for wrongfully using marijuana and it was only that one time!  Despite of my offense, I know I have learned a valuable lesson.  Now I have a family, my wife and a 1 year old daughter, and I need an honorable discharge so I can use my Montgomery GI Bill to get the proper schooling to support my family.  For me, being released from the USMC was bad enough!  Should me and my family have to pay forever for my 1 mistake?  I did serve 3 of my 4 years and once a Marine, always a Marine!  I am only 22 and it makes it more harder for me to support my family because of inexperience.  So I please ask on behalf of me and my family that my discharge be changed to honorable.

Thank you for your time,

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:   None
	Inactive: USMCR(J)		970509 - 970526	COG

Period of Service Under Review:

Date of Enlistment:  970527		Date of Discharge:  000324

Length of Service (years, months, days):

	Active:    02  09  28
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  53

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (9)			Conduct:  3.7 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  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:

970509:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

990409:	Counseled for deficiencies in performance and conduct.  [Disobedience to orders and unauthorized absence.  On one occasion when given a lawful order, you failed to obey that order.  Additionally, when the situation arose with your disabled vehicle you failed to contact the unit in a timely manner.  Therefore causing concern for your well being and accountability].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990714:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent. 

990817:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 0601-0625, 3Aug99
Awarded restriction and extra duties for 14 days.  Restriction and extra duty for 9 days suspended for 6 months.  Not appealed.

991013:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 112A:
	Specification: Wrongfully use of marijuana on 16Feb99.
	Findings: to Charge I and specification thereunder, guilty.
	Sentence: Confinement for 45 days, reduction to Pvt.
	CA 991027:  Sentence approved and ordered executed.

991222:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct.

991223:	Applicant 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.

000207:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse.  The factual basis for this recommendation was platoon counseling for unauthorized absence on 16 January 1998, your nonjudicial punishment for unauthorized absence on 17 August 1999, your civilian arrest for possession of marijuana and drunk in public on 6 May 1998 which resulted in your special court-martial for wrongful use of marijuana on 13 October 1999, and the pattern of misconduct shown by those convictions and appropriate counseling. 

000306:	SJA review determined the case sufficient in law and fact.

000323:	GCMCA [Commanding General, 3d 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 000324 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.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (C, Part IV).  The applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.   Relief denied.

The applicant 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