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

 ex-Pvt, USMC
Docket No. MD02-00038

Applicant’s Request

The application for discharge review, received 010926, 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 020529.  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

1.  My discharge was based inequitable because it was based solely on a one time isolated incident in the 3 years and 10 months of service with no other adverse actions.  Since the 6 years of my discharge I have been full time employed in the underground utility field.
In my heart and in my family’s eyes, I still carry the title of Marine.  It would be an honor for me to carry the title of Honorable discharge from the USMC.

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)		910214 - 910408	COG

Period of Service Under Review:

Date of Enlistment:  910409		Date of Discharge:  950217

Length of Service (years, months, days):

	Active:    03  10  09
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  34

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (12)		Conduct:  4.1 (12)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM, SSDR with 2 Stars

Days of Unauthorized Absence:  7

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:

910211:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

910214:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver granted.

940513:	NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 940506, tested positive for amphetamine/methamphetamine.

940621:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Unauthorized absence from 0731, 26Apr94 to 1500, 3May94 (7 days/surrendered).
Specification 2: Absent from 0431 to 0741, 10May94.
Awarded forfeiture of $248.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture of $50.00 suspended for 6 months.  Not appealed.

940627:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully use methamphetamine on 3May94, a scheduled controlled substance which in result lead to a positive result on a urinalysis test.
Awarded forfeiture of $531.00 per month for 2 months, restriction for 60 days, extra duties for 45 days, reduction to PFC.  Not appealed.

940711:	Counseled for deficiencies in performance and conduct.  [Failure to sign in for your restriction on 9, 10 July 94.  As well as showing an indifference toward your punishment.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940727:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

940727:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was wrongful usage of drugs as evidenced by his positive urinalysis results for methamphetamine.  Given his pre-enlistment drug waiver and the destructive nature of methamphetamine, the respondent's wrongful use of drugs represents a flouting of the Marine Corps policy on drug abuse and brings great discredit upon the service.  By his actions, the respondent has demonstrated that he is unwilling to conform his behavior to Marine Corps regulations and standards of conduct. 

940730:	Applicant advised of his rights and having elected not to consult 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.

940902:	NJP for violation of UCMJ, Article 86:
Specification: Absent from appointed place of duty on 2000, 16Aug94, to wit: OOD for signing restriction papers.
Awarded forfeiture of $200.00 per month for 1 month, restriction and extra duties for 30 days, reduction to Pvt.  Forfeiture of $100.00, restriction and extra duty for 15 days suspended for 6 months. Not appealed.

940922:	SJA review determined the case sufficient in law and fact.

940928:	GCMCA [Commanding General, 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 940711 under other than honorable conditions 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 based on one isolated incident in over three years of service with no other infractions.  The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions, regardless of the other two non-judicial punishments the applicant received.  The discharge was proper and equitable.  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 P1900.16D), 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, wrongful use of a controlled substance.

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