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

 ex-PVT, USMC
Docket No. MD02-00642

Applicant’s Request

The application for discharge review, received 020403, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions or entry level separation or uncharacterized.  The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant listed the American Legion as his representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 021023.  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 at the time of issue.  The Board’s vote was three to two that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (with administrative discharge board), authority:  MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  This former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

Documentation

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

        Letter from Applicant dated October 19, 2002
        Letter from Congressman Conyers to Applicant 
        Character reference letter from E_ H_
        Character reference letter from W_ H_
        Wayne County Community College class confirmation for Fall 2002
        Character reference letter from G_ B_
        Character reference letter from R_ R. M_
        Character reference letter from D_ P_
        Character reference letter from R_ M_
        Letter of employment from Metaldyne dated October 17, 2002
        Earnings statement
        Term Life Insurance coverage
        Health Alliance Plan letter to Applicant
        Police record check
        Driving record report
        Home mortgage contract
        Home loan statement
        Marriage license (1 copy)
        Certificate of birth (2 copies)
        Salvation Army donation receipt
Letter from Applicant, undated
Copies of DD Form 214 (2)
Certification of Military Service
Copy of Chronological Record
Copy of SJA Discharge Proceedings
Copy of Statement of Immediate Superior (2pgs)  

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		890216 - 890403	COG

Period of Service Under Review:

Date of Enlistment:  890404		Date of Discharge:  930402

Length of Service (years, months, days):

	Active:    03  11  28
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  39

Highest Rank:  CPL

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (9)			Conduct:  3.4 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM, SASM, NUC, GCM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (with administrative discharge board), authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

890216:	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.

890226:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

890626:	Counseled regarding deficiencies, specifically, the illegal use of (THC) confirmed by urinalysis testing on 890407 (NAVDRUGLAB, SDIEGO, CA MSG 172039Z Apr 89).  Applicant was interviewed and found not dependent on THC by medical officer.  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

920506:	Counseled concerning positive THC lab results on urinalysis.

920717:	Special Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a (2 Specifications):
	Specification 1: At an unknown location, between 920408 and 920421, wrongfully used marijuana.
	Specification 2: At an unknown location, between 920427 and 920506, wrongfully used cocaine.
	Findings:  to Charge I and specification 1 thereunder, withdrawn.  To specification 2 under Charge I, guilty.
	Sentence:  Forfeiture of $250.00 pay per month for 2 months, confinement for 2 months, reduction to E-1.
	CA 921008:  Sentence approved and ordered executed.
	
920717:	Medical officer examined Applicant and determined he was fit for confinement.

921118:	Applicant referred by command for medical evaluation due to positive urinalysis for marijuana and cocaine in May and a DWI, BAC .13 in Oct 1992.  DRUG HISTORY: Client disclosed the use of marijuana and cocaine which was documented in his SRB with pre-service waiver.  Client related that from 1982 to 1989, he smoked 3 marijuana joints daily to get high.  Since 1989, while in the USMC, he has smoked it on 6 occasions.   Client stated marijuana is his drug of choice and he likes it.  On 3 occasions he related drinking vinegar to try to ensure he didn't have a positive urinalysis.  At age 17, he stated he snorted cocaine twice.  Client's only other use was in May of 92 when his marijuana was laced with cocaine.  Applicant's content of thought centered on getting out of the USMC, and going back to school.  Applicant stated "I'm going to stop the drug use.  I see how it's affecting my life."  Medical officer assessed Applicant as possessing a "fair motivation for treatment."  Diagnostic Impression: Cannabis Dependence and Alcohol Abuse.

921119:	Applicant offered, but declined treatment at the nearest VA.

921120:	Counseled concerning deficiencies in performance and conduct.  Alcohol related incident.  Specifically, DWI and blood alcohol count of .13, on 25 Oct 92.  The command is processing Applicant for separation due to drug and alcohol related incidences.  Applicant chose not to make a statement.

921123:	NJP for violation of UCMJ, Article 92: On 921116, having knowledge of BO 5560.2J, violated same by driving on base revocation.
Awarded forfeiture of $183.00 pay per month for 1 month (suspended for 2 months), restriction and extra duties for 14 days, and restricted to the limits of place of mess, base and worship.  Not appealed.

921217:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Special Court-Martial conviction of 17 July 1992 for wrongful use of marijuana and cocaine.

921217:	Applicant advised of rights and having chosen not to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

921217:	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 Applicant's special court-martial conviction of 17 July 1992 for the illegal drug use.

930212:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

930310:	SJA review determined the case sufficient in law and fact.

930313:	GCMCA [Commanding General, 2nd Marine Division, FMF] recommended to the Commandant of the Marine Corps (MMSR-3) that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.

980812:	NDRB documentary record review Docket Number MD98-00581 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 930402 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’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. The Board commends the Applicant for his honesty, continuing educational pursuits and commitment to his family and responsibilities as a citizen.  However, the Board determined that the Applicant’s evidence of post-service conduct did not mitigate the offenses for which he was discharged.  Therefore, relief is not warranted.

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