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

  ex-Pvt, USMC
Docket No. MD03-00459

Applicant’s Request

The application for discharge review was received on 20030124.  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.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040212.  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-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  My discharge was inequitable because it was based on one isolated incident in two and a half years of service with no other adverse action.

2.  The discharge was improper because the presence of marijuana in one urinalysis test should not be sufficient cause to list “Misconduct-Drug Abuse” as the Narrative Reason for separation.

3.  The discharge was improper because, notwithstanding this one incident, I was an above-average Marine.  I was awarded two Meritorious Masts and was, on two occasions, considered for Meritorious Corporal promotion.  I earned the position of gun team leader as a relative newcomer to the fleet.  Lastly, I was awarded the Good Conduct Medal on 930318.

4.  The discharge was improper because I served in the infantry during the Gulf War.  I was assigned to a casualty replacement company.  Although we weren’t needed, I was prepared to fight and die for my country.

5.  The discharge was exceedingly harsh because there have been countless missed opportunities in the ten years that have followed as a direct result of the type of discharge I received.  There has been more than sufficient punishment for this regrettable misdeed.

6.  The discharge was inequitable because I am seeking to go to college, but my present type of discharge may prevent me from being accepted.  An honorable discharge would also help me to qualify for the G.I. Bill, which I paid in full amount for and otherwise would qualify for.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

“7.  (Equity Issue) This former member further 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 the application.”

Documentation

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

Character reference, dated January 13, 2003
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		890905 - 900724	COG

Period of Service Under Review:

Date of Enlistment:  900725		Date of Discharge:  930722

Length of Service (years, months, days):

	Active:    02  11  29	Does not exclude lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  6

Education Level:  12			AFQT:  83

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (11)			Conduct:  3.7 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, MM (2)

Days of Unauthorized Absence:  26

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

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

Chronological Listing of Significant Service Events:

920519:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident, specifically being intoxicated to the extent of incapacitation for duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920723:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence from your appointed place of duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930203:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence 0800, 921009 to 1330, 921105 (26 days/surrendered).
Violation of UCMJ, Article 87:
Specification: Missing movement through design.
Violation of UCMJ, Article 92:
Specification: Violate BO P5560.2J by driving a POV while on state suspension on 1835, 930116.
Awarded restriction for 45 days, reduction to PFC.  Not appealed.

930318:	NJP for violation of UCMJ, Article 112A:
Specification: Used a controlled substance, to wit: marijuana, which showed positive on a urinalysis.
Awarded forfeiture of $407.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

930512:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, and alcohol dependent (in partial remission).  Applicant stated he smoked marijuana on a monthly basis since late 1991, and that he would “normally wait until after a piss test then get high.” Applicant stated he smoked marijuana to get out of the USMC.

930517:	Applicant declined treatment in conjunction with discharge.

930616:	NJP for violation of UCMJ, Article 92 (2 specs):
Specification 1: Operate his POV on Camp Lejuene while on base revocation.
Specification 2: Violate RegtO P1700.1 by giving alcohol to a minor not of legal drinking age.
Awarded forfeiture of $190.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

930622:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

930623:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

930623:	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 nonjudicial punishment of 18 March 1993 for wrongful use of marijuana.

930709:	SJA review determined the case sufficient in law and fact.

930712:	GCMCA [Commanding General, 2d Marine Division, FMF, Camp Lejeune, NC] 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 19930722 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).

Issues 1-4.  There is credible evidence in the record that the Applicant used illegal drugs.   The Applicant stated he used drugs on multiple occasions while on active duty.  Even one instance of drug abuse warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  No other narrative reason other than that stated on the Applicant’s DD Form 214 more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  The Applicant’s awards and record of service does not mitigate his misconduct.  Relief denied.

Issue 6.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.   

Issues 5 and 7.  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.  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 P1900.16D), 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