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

ex-Pvt, USMC
Docket No. MD02-00374

Applicant’s Request

The application for discharge review, received 020207, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation by American Legion.  In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area.  Applicant advised the Board he was unable to travel.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021008.  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-Drug abuse (with admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

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

Documentation

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

Applicant's DD Forms 214 (Member 1 and 4)
Letter from the applicant dated January 23, 2002
Certificate of Award dated December 14, 2001
Certificate of Achievement dated May 6, 2001
Certificate of Achievement dated December 20, 2001
Letter from the applicant dated March 4, 2002
Transcript from Louisiana State University and A &M College dated July 10, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		850904 - 860617	COG

Period of Service Under Review:

Date of Enlistment:  860618			Date of Discharge:  871215

Length of Service (years, months, days):

	Active:    01  05  28
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  12				AFQT:  60

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (5)				Conduct:  4.2 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (admin discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

850830:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

870305:	Counseled for deficiencies in performance and conduct.  [Laws and orders governing the consumption of alcoholic beverages while under the legal drinking age.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

870521:	NJP for violation of UCMJ, Article 112a:
Specification: Wrongfully used marijuana (THC) on 29Apr87.
Awarded forfeiture of $150.00 per month for 2 months, restriction for 30 days, reduction to Pvt.  Forfeiture suspended for 6 months.  Not appealed.

870529:	Screening results: Diagnosis: Episodic alcohol dependence with drug abuse.  Applicant has a substance abuse problem requiring Level III treatment.

870825:	Screening results:  Diagnosis: Continuous habitual alcohol dependence.  Applicant has a substance abuse problem requiring Level III treatment.

870826:	Memorandum from Staff Physician:  Applicant was evaluated for drug/alcohol dependency and found to be possibly psychologically dependent on marijuana and to have a history of alcohol abuse.  Although member qualifies for VA Level III drug/alcohol rehabilitation, applicant's motivation for obtaining rehabilitation is poor.  Recommend admin separation and reevaluation after discharge at a VA drug/ETOH rehabilitation facility for final decision on treatment.

870903:	Vacate suspended forfeiture of $150.00 for 2 months awarded at CO's NJP dated 870521.

870929:	NJP for violation of UCMJ, Article 112a:
Specification: Wrongful use of marijuana (THC) on 2Sep87.
Awarded forfeiture of $200.00 per month for 2 months, restriction for 30 days.  Forfeiture of $100.00 per month for 2 months suspended for 4 months.  Not appealed.

870929:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

871007:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

871007:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was misconduct by continued use of illegal drugs (marijuana, THC) on at least nine occasions. 

871027:	Applicant waived right to an administrative discharge board.

871124:	SJA review determined the case sufficient in law and fact.

871125:	GCMCA [Commanding General, 1st Marine Amphibious Brigade] 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 871215 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. There is credible evidence in the record that the applicant used illegal drugs. 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the applicant is drug free, are examples of verifiable documentation 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.  Relief not warranted.

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.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210 MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 4, effective 29 Jul 87 until 26 Jun 89.

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