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

 ex-PFC, USMC
Docket No. MD02-00521

Applicant’s Request

The application for discharge review, received 020305, requested that the characterization of service on the discharge be changed to general/under honorable conditions or entry level separation or uncharacterized.  The Applicant requested a documentary record discharge review.  The Applicant listed the New York State Division of Veterans Affairs as the 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, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  On behalf of the former serviceman Mr. (Applicant), this is a request for an upgrade of his discharge. Mr. (Applicant) entered the U.S. Marine Corps on April 10, 1995 and was discharged with an "OTHER THAN HONORABLE" discharge on September 1, 1997. Mr. (Applicant) came from a stable family environment, consisting of a mother, father and three older sisters.  He is a high school graduate, and was reared in Harlem, New York. While in the service, Mr. (Applicant) advises that he received good proficiency and performance evaluations and made promotions in a timely manner.
The former serviceman contends that problems began to develop when an instructor (with out his permission), arbitrarily changed his orders which also resulted in a change of his duty station.  He indicated that he became despondent, then after duty and on weekends Mr. (Applicant) began to drink and use a controlled substance, thus his urine began to test positive. Mr. (Applicant's) conduct during his "OFF DUTY" time was inappropriate, which upon one occasion resulted in his receiving an "Article 112a of the Uniform Code of Military Justice for the use of marijuana. Due to the U.S. Marine Corps zero tolerance on such issues Mr. (Applicant) has indicated that without benefit of counseling, went before a non-juridical review board and was discharged with an "UNDISIRABLE - OTHER THAN HONORABLE". This former serviceman has made tremendous strides subsequent to his discharge to "clean up his act" and be a benefit to the community in which he lives. In order to assist this man, the New York State Division of Veterans Affairs is requesting that Mr. (Applicant's) discharge be upgraded, so he my be able to have various avenues which are now closed to him, open and further contribute to society.

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)		950324 - 950403	COG

Period of Service Under Review:

Date of Enlistment:  950410		Date of Discharge:  970901

Length of Service (years, months, days):

	Active:    02  04  22
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (5)			Conduct:  4.1 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Certificate of Commendation

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:

950323:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

970304:	Counseled for deficiencies in performance and conduct.  [Repeated lateness for duty.  Such behavior leaves an extra burden on coworkers and detracts from their otherwise high morale and team spirit.  SNM flouts authority despite numerous attempts at counseling on a formal and informal basis and has been unresponsive to normal and special counseling.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970507:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 970423 and 970424, tested positive for THC.

970515:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully use marijuana between 14 Apr 97 and 22 Apr 97, as evidenced by NAVDRUGLAB, message dated R071716Z May 97 ZYB, Batch 5392, Spec 3 and Batch 5393, Spec 3.
Awarded reduction to PFC.  Not appealed.

970807:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

970807:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

970807:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was respondent's abuse of a controlled substance, specifically, marijuana (a schedule 1 controlled substance) as evidenced by Naval Drug Lab Jacksonville, Florida message R071716Z May 97 1997.  

970815:	SJA review determined the case sufficient in law and fact.

970815:	GCMCA [Commander, Marine Corps Recruit Depot/Eastern Recruiting Region, Parris Island] 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 970901 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.  The Board found no indication that he was unfairly denied any rights regarding his non-judicial punishment or for his separation proceedings.  While he may feel that his assignment to his duty station was a factor that contributed to his actions, the record clearly reflects his 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.  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 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.  

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 P1900.16E), 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 “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