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

 ex-Pvt, USMC
Docket No. MD02-00520

Applicant’s Request

The application for discharge review, received 020308, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021121.  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 (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the Applicant stated in block 8 "See attached personal statement."  The statement was not attached.

Documentation

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

Copy of DD Form 214
Cameron County Sheriff's Department check dtd Jun 14, 2000
Brownsville Police Department check dtd Mar 5, 1999
Cameron County Veterans Service Officer ltr of Feb 14, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		901004 - 910210	COG

Period of Service Under Review:

Date of Enlistment:  910211		Date of Discharge:  940610

Length of Service (years, months, days):

	Active:    03  04  00
	Inactive:  None

Age at Entry:  26			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (8)		Conduct:  4.1 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, JMUC, SSDR, AFEM, Marksman Rifle 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 (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

901003:	Initial enlistment contract documents admission of pre-service marijuana experimentation (4 times - Feb 89).  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

910613:	NJP for violation of UCMJ, Article 134: on or about 910608, prior indulgence, to wit:  did drink prior to going on post.
Awarded forfeiture of $125.00 per month for 1 month, restriction and extra duties for 14 days (suspended for six months).  Not appealed.

911209:	Counseled regarding deficiencies, specifically, performance on weight control.  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

920605:	NJP for violation of UCMJ, Article 92: on or about 1500, 920508, member did disobey a lawful order from Sgt M_ when he failed to report to work located at Utilities Section, 9th EngrSptBn; violation of UCMJ, Article 91:  on or about 1630, 920508, did willfully disobey a lawful order from LtCol R. L. E_ when he had alcohol in his room located at BLKS 2411, Camp Hansen, Okinawa, JA.  
Awarded forfeiture of $440.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

940301:	NAVDRUGLAB San Diego CA, reported Applicant’s urine sample, received 18FEB94, tested positive for cocaine.

940324:	NJP for violation of UCMJ, Article 112a: between 940202 and 940207, wrongfully used cocaine, a scheduled II controlled substance.
Awarded reduction to E-2, forfeiture of $400.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

940411:	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 cocaine.

940411:	Applicant advised of 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.

940414:	Medical evaluation for drug abuse found the Applicant not drug dependent. 

940419:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was due to the Marine's illegal use of cocaine.  

940523:	SJA review determined the case sufficient in law and fact.

940525:	GCMCA [CG, 1ST MARDIV (REIN), FMF] 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 940610 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).

The Applicant’s discharge characterization accurately reflects his service to his country.  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.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity 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.  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 P1900.16D), 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 “afls14.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