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

  ex-PFC, USMC
Docket No. MD03-00428

Applicant’s Request

The application for discharge review was received on 20030116.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20031205.  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

Applicant’s issues, as stated on the application:

1.  “To Whom It May Concern:

I was given an Other than Honorable Discharge from the United States Marine Corps on April 30, 2001. The reason was that I tested positive for drug use. At the time of my discharge I had served for two years and six months. Up until the point of my discharge, I had no other disciplinary actions taken against me - my record was clean, even though I was a young, careless person who had given no thought to his future or to the oath he had taken as

I admit my drug use. I admit it now, and I admitted it then. I took responsibility for my actions, and I understand why I was given the discharge.

I realized that I had made a serious mistake that would follow me throughout the rest of my life, and I also realized that nobody was at fault but one person…..me.

Since my discharge I have applied all of the things that I learned in the Marine Corps. I take pride in any and everything that I do. I commit myself to any job or career that I start. I am highly regarded among my peers, and hold the respect of those appointed over me.

Now I am enrolled in a program of instruction that will guarantee me a professional position in security and/or law enforcement. I am doing extremely well in this highly structured class, and have definite goals. I cannot apply for some of the jobs that I want to try for with the kind of discharge that I hold.

This is why I am applying to you for an upgrade to this discharge. I believe that I have matured sufficiently to never engage in my past behaviors, and urge you to seriously consider this request.

Please contact me at your convenience at the above address.

Thank you,

K_ S_ (Applicant)
Security and Investigations Cadet
Sacramento Job Corps Center”

Documentation

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

Job/Character reference, dated January 7, 2002
Evaluation signed by Applicant, dated January 6, 2003
Applicant’s DD Form 214 (3)
Separation/Travel Pay certificate, dated April 30, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		970627 - 980802	COG

Period of Service Under Review:

Date of Enlistment:  980803		Date of Discharge:  010430

Length of Service (years, months, days):

	Active:    02  08  28
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (6)			Conduct:  4.4 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, 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:

970620:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

000609:	Counseled for deficiencies in performance and conduct.  [My unsatisfactory appearance in uniform and lack of military bearing.  Despite repeated counseling on these deficiencies I continue to fail in these areas.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010103:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 001222, tested positive for MDMA (methamphetamine).

010122:	Applicant refused medical officer evaluation.  

010122:	Applicant signed VA treatment location statement.

010213:	Counseled for deficiencies in performance and conduct.  [Wrongfully use a controlled substance MDMA (methamphetamine), to which SNM tested positive on a urinalysis conducted on 001222.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010213:	Applicant advised of his rights and having consulted 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.

010308:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010302, tested positive for THC.

010308:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully use a controlled substance on 001222, to wit: methamphetamine.
Awarded forfeiture of $584.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

010319:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010319:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your possession and use of MDA (Methamphetamine).  

010329:	SJA review determined the case sufficient in law and fact.

010329:	GCMCA [Commanding General, 1st Marine Division (Rein), Camp Pendleton, CA] 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 20010430 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.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The discharge was proper and equitable.  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, to enhance employment opportunities, or for 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 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