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

 ex-Pvt, USMC 
Docket No. MD03-00199

Applicant’s Request

The application for discharge review, received 20021113, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031003.  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 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 stated

1.  TO WHOM IT MAY CONCERN:

I am writing this in regards to my discharge.  It concerns some past events, the events leading up to my discharge and what I have been doing since the Marine Corps.

I was discharged because I failed a urine test.  I know that sounds bad because there is a zero tolerance policy in affect for all branches of service.  I was made to fully understand that as early as bootcamp.  However, intoxication mixed with peer pressure makes your thinking process blurred, as was in my case.

Before the Marine Corps, I had never been in any type of trouble.  As you can see I had and still have no criminal record.  In high school, I was an average student.  I tried to do my best in everything.  As a freshman, I played football.  I would soon come to find out that I was not aggressive enough to do so.  Therefore, I took up writing.  In my sophomore year, I attended Paseo Academy.  There I took up journalism and was on the newspaper staff.  I had never been around any type of drugs before my military incident.  I mean it was around but I did not associate with those types of people.

It was soon after my graduation from high school that I decided that I needed to become more aggressive so I joined the military.  The Marines was also my idea, because I heard they were the best.  I really enjoyed the times I had in the Marines and being stationed in Hawaii didn’t hurt either.  Anyway, I remember that it was on a weekend and me and some of my fellow Marines rented a car and went down to Waikiki.  That’s where all of the clubs were.  I was intoxicated by the time we even reached the club and drank even more when we got there.  There was a girl I met there her name was S_.  She had eight sisters, all of whom were at the club that night.  We were all together when S_ said that she had some marijuana out in her car and wanted to know if we wanted to smoke.  I told her that I did not smoke and that I had never seen what marijuana looked like outside of television.  My friends were going along with it though; they told me that it was time to find out.  I was intoxicated, and I felt that I did not want to be a “party pooper” so I went along.  A few days after that we had to take a pop urine test and that was when I knew that my career was over.  Everybody says they wish that they had the power to turn back the hands of time.  Well if I could, I would go back to that night and tell them to go ahead and go.  I would have stayed in the club.  That was the biggest mistake of my life.

After the military I went to Job Corps in Clearfield, UT.  There I took up Auto Mechanics; I was there until June of 99.  I came back to Kansas City, MO and found it was too hard to make a career out of that.  Then when I tried to go back they told me that I had to wait one year.  So I waited my year and in June of 2000, I went back.  This time I decided that I wanted to take up writing again.  I majored in Business Clerical.  That way I could learn computer programs and how to type.

I graduated from Job Corps in March of 2001.  Since then, I have been working at the American Red Cross.  I love this job and plan on staying here for a while.  In August, I will be attending Penn Valley Community College.  There I will major in Journalism.  Then after two years, I will transfer on to a four year university.  The goal, of course, is to become a Journalist.

Therefore, in light of all of these events I am asking you to please reconsider my discharge status.  I would really appreciate a chance to get all of the benefits that come along with being veteran.

Thank you for your consideration, 

2.  Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on 2/12/03 and the following comments are hereby submitted.

We concur with the Applicant’s contention that his under other than honorable discharge be changed.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrading the Applicant discharge to Honorable.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		970418 - 970427	COG

Period of Service Under Review:

Date of Enlistment:  970428		Date of Discharge:  980702

Length of Service (years, months, days):

	Active:    01  02  05
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  67

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (4)			Conduct:  3.8 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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:

970125:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

970128:	Initial enlistment screening physical documents admission of pre-service marijuana experimentation x6.

970428:	Initial enlistment contract documents admission of pre-service marijuana experimentation x7 from 9501 to 9702.

980513:	NJP for violation of UCMJ, Article 112A:
Specification: Tested positive for THC on NAVDRUGLAB message 292214 Apr 98.
Awarded reduction to Pvt, forfeiture of $463.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

980513:	Counseled for deficiencies in performance and conduct.  [Specifically, your illegal use of marijuana, which violates Article 112a of the UCMJ.  As a result of your misconduct, Regt NJP was held on 970513.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980416:	Counseled for deficiencies in performance and conduct.  [Under age drinking, absent without leave and straggling.  Your conduct is a clear departure from good order and discipline and will not be tolerated.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980513:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

980513:	Applicant advised of his 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.

980513:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was wrongful use of marijuana.  

980528:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent; however, he “was briefed on his VA benefits, as they pertain to drug treatment. (Applicant) was provided with the address of the nearest Veterans Administration Hospital to his home of record.” 

980611:	SJA review determined the case sufficient in law and fact.

980615:	GCMCA [Commander, Marine Corps Base Hawaii] 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 19980702 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 opines, “I was discharged because I failed a urine test. … intoxication mixed with peer pressure makes your thinking process blurred, as was in my case.”  He continues by stating, “I had never been around any type of drugs before my military incident.”  The Applicant alludes to his discharge being based on one isolated incident; however, his record shows he required a wavier for drugs to initially enter the Marine Corps and that he had “experimented” with marijuana “x 7 from January 1995 to February 1997” (a month after he signed a statement attesting to his understanding of the Marine Corps no drug policy).  There is credible evidence in the record that the Applicant used illegal drugs while on active duty.  Drug abuse warranted processing for separation under other than honorable conditions.  The Applicant acknowledged the same in a signed letter on 13 May 1998, in which he waived his right to an Administrative Discharge Board.   The discharge was proper and equitable.  Relief denied.

The Applicant states, “(he) would really appreciate a chance to get all of the benefits that come along with being veteran.”  He has not been able to maximize his potential as a civilian, due to the nature of his discharge.  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.  Relief not warranted.

Issue  2.  The NDRB is authorized to consider outstanding post-service factors in the re-characterization 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 offense 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