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

 ex-Pvt, USMC
Docket No. MD01-01028

Applicant’s Request

The application for discharge review, received 010731, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020215.  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

1.  I feel my discharge was forced thru quickly.  There are other cases in the same battalion where people only received restriction, loss of pay & reduction in rank.  I have no prior incidents.  I feel that if I were given the chance I would have succeeded in being honorably discharged.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		970829 - 980727	COG

Period of Service Under Review:

Date of Enlistment:  980728		Date of Discharge:  000915

Length of Service (years, months, days):

	Active:    02  01  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  61

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (5)			Conduct:  4.4 (5)

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:

970828:	Acknowledged outstanding of the Marine Corps Policy concerning illegal use of drugs.

000316:	NAVDRUGLAB, San Diego, reported applicant’s urine sample, received 000310, tested positive for cocaine.

000501:	Medical evaluation found member meets criteria for Alcohol Dependence (303.90).  Recommend Intensive Outpatient Treatment and Intake Assessment, with MSgt H_ at 0900 on 5 May 00.

000629:	Medical evaluation found member meets criteria for Alcohol Dependence (303.90) not in remission.  Mbr should be processed for admin separation due to treatment failure.  In interim or if retained the following is recommended:  Weekly follow up with unit SACO and AA meetings 3 times weekly with court card documentation.

000713:	Summary Court Martial
		Charge I:  violation of the UCMJ, Article 112a (2 specs)
		Specification 1 - On or about 6 Mar 00, wrongfully use cocaine.
		Specification 2 - On or about 6 Mar 00, wrongfully use ecstasy.
Charge II (added):  violation of the UCMJ, Article 92:  On or about 9 Jun 00, violate a lawful general order by consuming alcohol under the age of 21.
Findings:  to Charge I and specifications 1 and 2 thereunder - guilty.
Charge II and specification thereunder - guilty.
Sentence:  Reduction to E-1, forfeiture of $500.00 per month for 1 month, confinement for 30 days.

000816:	Counseled for deficiencies in performance and conduct [illegal drug involvement, cocaine and methylenedioxy-methamphetamine (MDMA) used identified through urinalysis].  Advise that administrative discharge processing mandatory.

000816:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000816:	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.

000821:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was POSITIVE URINALYSIS ON 16 Mar 00.  

000901:	Acknowledged eligibility for treatment at a VA Alcohol and Drug Rehab Program after discharge.

000907:	Naval Addictions Rehabilitation and Education Dept, Naval Hospital Camp Pendleton, CA:  Mbr offered MOE, but refused treatment and was advised there were no VA Hospital Addiction Treatment available in conjunction with discharge.

000907:	SJA review determined the case sufficient in law and fact.

000907:	GCMCA [CG, 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 000915 under other than honorable conditions for misconduct due to drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1.  The Board considers the propriety and equity of each case based upon its own merits. 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. Drug abuse warranted processing for separation, normally under other than honorable conditions.  The discharge was proper and equitable.  Relief denied.

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. 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.  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.  

C.  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.

D.  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