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

 ex-PFC, USMC
Docket No. MD02-00031

Applicant’s Request

The application for discharge review, received 010925, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Seattle, WA.  The applicant listed the American Legion as his 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 and that all hearings are held in the Washington, DC area.  The Naval Discharge Review Board 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 020715.  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/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) This former member proffers that his character of service should be upgraded because his drug use, a matter that he now regrets, was an isolated incident in an otherwise satisfactory service period. 

2. (Equity Issue) This former member further requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Copy of DD Form 214
Letter from Applicant

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		920529 - 920913	COG

Period of Service Under Review:

Date of Enlistment:  920914		Date of Discharge:  941123

Length of Service (years, months, days):

	Active:    02  02  10
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  69

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

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

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge (2nd), NDSM, SSDR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

920529:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver granted.  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

940202 :	NJP for violation of UCMJ, Article 92: At KMCAS, HI, on or about 940202, did willfully disobey BdeO 1700.2a by consuming alcohol under the legal age; violation of UCMJ, Article 107: At KMCAS, HI, on or about 940104, did make a false official statement to 1stLt H_, 1stSgt R_, and Sgt D_ that his AFID card had been stolen; violation of UCMJ, Article 134: At KMCAS, HI, on or about 940202, did alter his AFID card; violation of UCMJ, Article 134: At KMCAS, HI, on or about 940202, did have 2 AFID cards in his possession.
Awarded forfeiture of $225.00 pay per month for 1 month (forfeiture of $100.00 suspended for 6 months), restriction and extra duties for 14 days.  Not appealed.

940223:	Counseled for deficiencies in performance and conduct.  [NJP dated 940202.  Within the present enlistment, applicant received one Non- Judicial Punishment for consuming alcohol under the legal age, making a false official statement to 1stLt H_, 1stSgt R_, and Sgt D_ that applicant’s AFID card has been stolen, altering the AFID card, and for having two AFID cards in applicant’s possession.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940713:	NAVDRUGLAB [SAN DIEGO, CA], reported applicant’s urine sample, received 940707, tested positive for [THC].

940725:	NJP imposed and suspended on 940202 for a period of 6 months vacated and the punishment is ordered executed.
 
940725:	NJP for violation of UCMJ, Article 112a: On the island of Oahu, HI, on or about 940601-940701 did use marijuana, a controlled substance.
Awarded forfeiture of $466.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-2.  Not appealed.

940823:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident, specifically, Command Referral for Underage Drinking dated 940204.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940826:	Requested VA Medical treatment for alcohol and drug abuse at VA Medical Center in conjunction with his discharge. 
 
940829:	Counseled regarding deficiencies. [Illegal use of marijuana.]  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

940915:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis for THC.

940915:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

940915:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the respondent's drug abuse.

941013:	SJA review determined the case sufficient in law and fact.

941017:	GCMCA [Commander, 3d 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 941123 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 applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  While he may feel that this was an isolated incident and that frustration with his MOS and knee injury 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 discharge was proper and equitable.  Relief denied.

Issue 2.  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 P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

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