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

 ex-LCpl, USMC
Docket No. MD01-00853

Applicant’s Request

The application for discharge review, received 010612, 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 010808.  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 HONORABLE CONDITIONS (GENERAL)/Misconduct-Drug abuse (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because it was based on one isolated incident in 52 months of service with no other adverse action.

Documentation

Only the applicant's service and medical records were reviewed, as the applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		870512 - 871115	COG

Period of Service Under Review:

Date of Enlistment:  871116		Date of Discharge:  920724

Length of Service (years, months, days):

	Active:    04 08 09	Inactive:  00 06 04

Age at Entry: 17(Parental Consent)	Years Contracted:  5

Education Level:  12			AFQT:  74

Highest Rank:  Cpl 

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (13)			Conduct:  4.3 (13)

Military Decorations:  LA (x2), MM (x3),  GCM

Unit/Campaign/Service Awards:   NDSM

Days of Unauthorized Absence:  None

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

UNDER HONORABLE CONDITIONS (GENERAL) /Misconduct-Drug abuse (with administrative discharge board), authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

870512:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver was granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

920325:	NAVDRUGLAB Oakland, CA reported applicant’s urine sample tested positive for cocaine.

920331:	Counseled for deficiencies in performance and conduct. Specifically, use of cocaine on or before 13 March 1992 as identified through NAVDRULAB Oakland Msg Number 251612Z Mar 92.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920408:	SACO/DACO recommended applicant enroll in Level I treatment, a urinary surveillance program, and have a medical evaluation.

920414:	Medical evaluation for drug abuse found the applicant to have an isolated episode of cocaine experimentation, and concurred with the recommendation for Level I treatment. 

920415:	NJP for violation of UCMJ, Article 112a:
Specification: SNM did at SOMS MCAS El Toro, Santa Ana, CA 92709 or surrounding community on or about 1 March 1992, wrongfully used cocaine.
Awarded reduction to LCpl, E-3; forfeiture of $350.00 per month for 1 month.  Not appealed.

920417:	Commanding Officer, Station Operations and Maintenance Squadron, MCAS El Toro recommended to CG, MCAS El Toro that applicant be processed for discharged with a General (Under Honorable Conditions) by reason of misconduct due to drug abuse.  The factual basis for this recommendation was a positive urinalysis for cocaine.  Commanding officer’s comments: “SNM has admitted to drug abuse and has also tested positive.  The Marine Corps does not condone drug abuse.  It is in the best interests of the Marine Corps to separate SNM ASAP.”

920427:	Applicant notified of intended recommendation for discharge with a General characterization of service by reason of misconduct due to drug abuse as evidenced by positive urinalysis for cocaine.

920429:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

920602:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge Under Honorable Conditions (General).

920623:	SJA review determined the case sufficient in law and fact.

920702:	GCMCA (Commander, Marine Corps Air Bases, Western Area) directed the applicant's discharge Under Honorable Conditions (General) by reason of misconduct due to drug abuse as recommended by the Administrative Discharge Board.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920724 under honorable conditions (General) 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 states his discharge was inequitable because it was based on one isolated incident in 52 months of service with no other adverse action.  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 applicant used illegal drugs. On 12 May 1987, the applicant was briefed upon and certified that he understood the Marine Corps’ zero tolerance drug use policy. Drug abuse warranted separation, normally under other than honorable conditions.  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.  The Board will not grant relief on this issue.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider outstanding post-service conduct, 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.  However, there is no law or regulation that provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record.  

The applicant is reminded that he remains eligible for a personal appearance hearing provided an application is received within 15 years from the date of discharge.  Representation at a personal hearing is highly recommended but not mandatory. 

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, wrongfully use of controlled substance - cocaine.

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