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

 ex-PFC, USMC
Docket No. MD02-01055

Applicant’s Request

The application for discharge review, received 020722, 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 030410.  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.	I deeply regret the mistake I made while serving in the Navy, other than this one instance, my record was outstanding.  I learned my lesson the hard way in my involuntary separation.  It has been nearly two years since my separation.  I believe since that time I have shown signs of rehabilitation by staying out of trouble, and staying away from drugs.

Documentation

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

Applicant's DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980121 - 980726	COG

Period of Service Under Review:

Date of Enlistment:  980727		Date of Discharge:  000814

Length of Service (years, months, days):

	Active:    02  00  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  74

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (5)			Conduct:  4.0 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  Letter of Appreciation, MUC

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:

980120:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

000503:	SACC screening/assessment: Substance use below the diagnostic level.  Medical evaluation required.  Applicant does not meet DSM IV criteria for drug abuse or dependency DSM IV, no diagnosis.  Recommend administrative separation.

000504:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

000512:	NJP for violation of UCMJ, Article 92:
Specification: Disobeyed a direct order by going to Mexico without authority on 000423.
Violation of UCMJ, Article 112a:
Specification: Wrongful use, possession, etc, of controlled substances on 1115, 000423, to wit: apprehended by customs with 14 grams of marijuana, while attempting to cross the border of Mexico into the United States.
Awarded forfeiture of $4000.00 per month for 2 months, restriction and extra duties for 30 days, reduction to PFC.  Not appealed.

000512:	Counseled for deficiencies in performance and conduct.  [Specifically on or about 1115 on 000423, apprehend by customs with 14 grams of marijuana, while attempting to cross the border from Mexico into the United States; and failure to obey an order to submit an out-of-bounds chit to Mexico, an order which it was his duty to obey, disobeyed the order by going to Mexico without authority.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000522:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000523:	Applicant advised of his rights and having elected 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.

000706:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was nonjudicial punishment on 11 May 2000, for violation of Article 112a, UCMJ: Wrongful use, possession, etc., of controlled substances.  On 23 April 2000, Applicant apprehended by customs with 14 grams of marijuana while attempting to cross the border from Mexico into United States. 

000714:	Applicant notified that VA drug and alcohol rehabilitation treatment available, if desired.

000718:	SJA review determined the case sufficient in law and fact.

000718:	GCMCA [Commander, Marine Corps Air Bases Western Area] 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 000814 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 states his discharge was based on one incident in what was otherwise an outstanding record.  There is credible evidence in the record that the Applicant used illegal drugs.  Even one instance of 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.  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.  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 of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged.  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 P1900.16E), 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