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

  , ex-LCpl, USMC
Docket No. MD02-01242

Applicant’s Request

The application for discharge review, received 20020826, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant listed the American Legion as the representative on the DD Form 293. 

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20030904.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was four to one 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), authority:  MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  This former member avers that his command failed to follow proper USMC guidance when administering his drug test which resulted in a false positive. Given the fact that he never used illegal drugs, he opines that upgrade of his character of service to honorable and change of his narrative reason to secretarial authority is warranted.

2.  This former member 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 this application.

Documentation

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

Introduction letter, dated June 27, 2002 (4 pages)
Two pictures
Letter of recommendation, dated February 11, 2002
Letter of recommendation, dated April 9, 2002
Letter of recommendation, dated March 8, 2002
Letter of recommendation from Applicant's wife, undated
Detail explanation of issues (3 pages)
Twenty-four pages from Applicant's service record (titled minutes)
Applicant's DD Forms 214 (7)
Applicant's résumé
Thirty-three pages of service record
Honorable discharge certificate dated November 4, 1975
Honorable discharge certificate dated February 1, 1981
Honorable discharge certificate dated June 16, 1983
Certificate of completion, dated April 5, 1985
Certificate of completion, dated July 8, 1983
Certificate of completion, dated June 25, 1982
Certificate of completion, dated June 29, 1983
Certificate of completion, dated June 29, 1983
Certificate of completion, dated June 29, 1983
Certificate of completion, dated June 29, 1983
Certificate of qualification for membership, dated June 5, 1981 (2 copies)
Certificate of Athletic Achievement Award, dated August 3, 1981 (2 copies)
Appointment to Corporal, dated August 1, 1980
Appointment to Sergeant, dated January 1, 1982
Certificate of completion, dated June 5, 1981
Certificate of completion, dated November 5, 1979
Certificate of completion, dated November 5, 1979
Letter of appreciation, dated August 6, 1979
Letter of appreciation cover letter, dated August 8, 1979
Good conduct certificate, dated February 2, 1981
Letter of appreciation, dated July 3, 1984
Thank you note, dated June 24, 1985
Meritorious mast certificate, dated May 17, 1980
Meritorious mast certificate, dated April 21, 1980
Meritorious mast certificate, dated June 25, 1984
Meritorious mast certificate, dated April 8, 1983
Certificate of reenlistment, dated June 7, 1986
Certificate of reenlistment, dated June 17, 1983
Certificate of training, dated April 7, 1984
Certificate of completion, dated January 18, 1982
Certificate of completion, dated January 13, 1982
Certificate of completion, dated September 25, 1981
Certificate of completion, dated August 12, 1977
Certificate of promotion to high school, dated June 18, 1971
High School Equivalency certificate, dated September 16, 1975
Bachelor of Arts Degree, dated January 25, 2001
Cambridge State University, Official transcript
Certificate of completion, undated
Certificate of achievement, dated June 1992
Certificate of appreciation, dated October 6-10, 1997
Letter of commendation, dated October 5, 1998
Employee of the Month certificate, dated March 2, 1998
Certificate of appreciation, dated October 5-9, 1998
Certificate of merit, dated November 20, 1998
Certificate of completion, dated December 10, 1999
Certificate of appreciation, dated October 2-6, 2000
Recognition of five years of service, undated
Certificate of parent appreciation, dated 1999-2000
Certificate of appreciation, dated October 1-5, 2001
LA Marathon XIV entry tag (copy)
Numerous family pictures, awards and activities

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		770118 - 770210	COG
		   USMCR		770813 - 780105	HON
	   USMCR		810203 - 810317	HON
Active:   USMCR		770211 - 770812	HON	RELAD
		   USMC		780106 - 810202	HON	Trans to USMCR
		   USMC		810318 - 830616	HON
		   USMC		830617 - 860606	HON

Period of Service Under Review:

Date of Enlistment:  860607		Date of Discharge:  880715

Length of Service (years, months, days):

	Active:    02  01  09
	Inactive:  None

Age at Entry:  28			Years Contracted:  3

Education Level:  11 GED		AFQT:  48

Highest Rank:  SSgt

Final Enlisted Performance Evaluation Averages: The enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR w/1*, GCM w/2*, Letter of Appreciation (3), MM (4), 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-Drug abuse (with admin discharge board), authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

860607:	Applicant reenlisted for 3 years.

871023:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 871016, tested positive for cocaine.

871106:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, retested positive for cocaine.

UNDATED:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ), Article 112A: Wrongfully use cocaine between 871007 and 871013. 

880105:	JDACC evaluation: Applicant placed on urinalysis surveillance program and 5 day substance abuse course 0730-1200, 880111 to 880115.

880119:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

880125:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

880212:	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 positive result for cocaine on 871013.  

880413:	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.

880603:	SJA review determined the case sufficient in law and fact.

880609:	GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 19880715 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.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  While the Applicant may feel that the urine sample in which the Applicant was found positive for cocaine was not collected properly, the Applicant did not provide sufficient evidence to refute the presumption of regularity.  The Board found no impropriety or inequity in the Applicant’s processing for discharge, to include the testimony and documentation available for review from the Applicant’s administrative discharge board.  Relief denied.

Issue 2.  The Applicant’s discharge characterization for the period of service under review 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 is evident during this 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 be 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 offense for which he was discharged.  Relief not warranted.

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 “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