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

 ex-PFC, USMC
Docket No. MD01-01123

Applicant’s Request

The application for discharge review, received 010821, 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 020620.  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.  Included in this application for the Review of Discharge are copies of my medical file and this typed statement.  I was recently discharged from the Marine Corps on an other than honorable discharge for the use of marijuana.   In this statement I will explain my situation and what happened to me.  I was in a very bad accident in July of 1999.  I had the back of my heel cut off and was lifted by helicopter from the accident to 29 palms naval hospital.  I was there for 3 days.  I had pins put in my heel bone because when my heel was cut open it broke the bone.  I was transported ambulance to Bal boa Naval Hospital.  Within the next three months I had multiple surgeries, I ended up having plastic surgery on my foot.  The doctors had to cut a muscle from my abdomen and attach it to my foot where the heal pad had died.  The whole time I was in the hospital I was on demurral, morphine, perkiest, vilkadine, and other miscellaneous drugs.  The night that I used marijuana I was allowed liberty for the weekend.  I had plans to go visit a friend in San Louis Obispo.  By the time I arrived in San Louis Obispo I realized that the doctors had not giving me any pain medication.  I was great pain, and begun to drink alcohol to ease it.  The alcohol did nothing to help the pain I was feeling.  A friend of mine persuaded me to smoke a small amount of marijuana to possibly help with the pain I was in.  I was willing to do almost anything to make the pain stop.  Although the pain was unbearable there is no reason that can justify the use of an illegal substance, such as marijuana.   This now concludes my statement; I ask you to please review my application for discharge upgrade.  I have also enclosed copies of my medical record that may help to answer any questions you may have.

Documentation

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

Medical Related Documents (48pgs)
Letter from applicant
Picture of applicant’s foot
DD-214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		970320 - 970805	COG

Period of Service Under Review:

Date of Enlistment:  970806		Date of Discharge:  000421

Length of Service (years, months, days):

	Active:    02  08  16
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  38

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (6)			Conduct:  4.0 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, Rifle Sharpshooter Badge, GCM

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:

970319:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

991105:	NAVDRUGLAB [SAN DIEGO, CA], reported applicant’s urine sample, received 991101, tested positive for [THC].

991116:	NJP for violation of UCMJ, Article 112a: In that SNM, did, at MCAGCC, 29 Palms, CA, on or about 991106, test positive for THC as confirmed by NAVDRUGLAB test R 05233ZNOV99ZYB.
Awarded forfeiture of $537.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-2.  Not appealed.

991228:	Counseled for deficiencies in performance and conduct.  [THC usage identified through urinalysis confirmed by NAVDRUGLAB msg date R 05233Z NOV 99 ZYB#MO92/03 Lab Batch # S9911013182.  As result you have been recommended for administrative separation].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000104:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000104:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

 000126:	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 wrongful use of THC as confirmed by NAVDRUGLAB msg date R 05233Z NOV 99 ZYB#MO92/03 Lab Batch # S9911013182.  

000229:	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 other than honorable conditions.

000418:	SJA review determined the case sufficient in law and fact.

000419:	GCMCA [Commander, 1st Marine Division] 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 000421 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. While the applicant may feel that his injury was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  Relief denied.

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 P1900.16E), effective 31 Jan 97 until 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