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

 ex-Pvt, USMC
Docket No. MD01-01071

Applicant’s Request

The application for discharge review, received 010813, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing before the traveling panel closest to New Orleans, LA.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

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 (verbatim)

1.  My discharge was inequitable because it was based on one incident during 30 months of service.

2.  The punishment received was also inequitable due to the fact that others in my unit received lesser punishments for the same offense.

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  None were found.

Documentation

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

Copy of DD Form 214
One page from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980312 - 980317	COG

Period of Service Under Review:

Date of Enlistment:  980318		Date of Discharge:  001020

Length of Service (years, months, days):

	Active:    02  07  03
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  68

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (7)			Conduct:  3.7 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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:

980311:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

991013:	Counseled for deficiencies in performance and conduct.  Fireworks were discovered during a health and comfort inspection in your possession on 29Sep99.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000307:	Medical evaluation for drug abuse found the applicant to be a drug abuser (isolated incident), not drug dependent. 

000425:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112A:
	Specification: Wrongfully use marijuana between 24Jan00 and 7Feb00.
	Finding: to Charge I and the specification there under, guilty.
	Sentence:  Forfeiture of $670.00, reduced to Pvt.
	CA action 000427:  Sentence approved and ordered executed.

000630:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000630:	Applicant advised of his rights and having elected not to consult 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.

000630:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was a positive urinalysis.  

001004:	SJA review determined the case sufficient in law and fact.

001005:	GCMCA, Commanding General, 2d Marine Division, II Marine Expeditionary Force, 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 001020 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 states:  “My discharge was inequitable because it was based on one incident during 30 months of service.”  The one incident the applicant refers to was the use of illegal drugs.  The applicant was aware of the Navy’s zero tolerance policy against the use illegal drug and he deliberately violated that policy.  The record shows the applicant signed a statement of understanding regarding the consequences of illegal drug use on 980311.  The Board found the Other Than Honorable discharge was properly and equitably assigned.  The negative aspects of the applicant’s service, his conviction at Summary Court Martial for violation of UCMJ Article 112a: wrongful use of a controlled substance, outweighed his positive contributions.    Relief is not warranted.

Issue 2 states:  “The punishment received was also inequitable due to the fact that others in my unit received lesser punishments for the same offense.”  The NDRB found nothing in the record demonstrating that the punishment in this case was disproportionate or unjust.  There is no evidence the applicant appealed the SCM conviction due to inequity.  Relief is 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.  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 clemency, based on post-service conduct.  The applicant did not provide any of these documents.  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. 
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