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

 
 ex-PVT, USMC
Docket No. MD03-00743

Applicant’s Request

The application for discharge review was received on 20030324.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  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 20040224.  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.  “Dear Sirs,
My discharge was inequitable because it was based on but one isolated incident in 25 months of honorable service with no other prior adverse action.  I did not have a track record of misconduct, drug use, or anything else that is unbecoming of a Marine before that incident.  Since that almost 4-year-old bad decision, I have matured tremendously.  If you would, please refer to the enclosed police report.  It shows I have had exemplary post service conduct.  I have most importantly accepted Jesus Christ as my Lord and Savoir and am no longer the man that I used to be.  Accepting Jesus into my life was the best decision I made and I pray that everyone makes that same good decision.  I ask that my discharge be upgraded to General under Honorable conditions.  This will allow me to become eligible for VA benefits.  Thank you for your time gentlemen.”

Documentation

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

Police Record from the State of North Carolina (2 pages)
Copy of DD Form 214
Meritorious Mast Certificate

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		951012 - 960915	COG

Period of Service Under Review:

Date of Enlistment:  960916		Date of Discharge:  990428

Length of Service (years, months, days):

	Active:    02  07  13
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  34

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  	NMF*			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*No Marks Found in the service record

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:

951010:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

970321:	Counseled for deficiencies in performance and conduct.  [Conduct unbecoming of a Marine.  SNM was told to standby for a ride to class by the battery GySgt.  SNM was found playing a Sony Playstation in the 4TH squadbay recreational room.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980727:	Counseled for deficiencies in performance and conduct.  [You continue to display an unprofessional attitude towards the unit and the Marine Corps.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980924:	NAVDRUGLAB [San Diego, CA], reported Applicant’s urine sample, received 990918, tested positive for THC.

981023:	Counseled for deficiencies in performance and conduct.  [Testing positive for drugs per NAVDRUGLAB, San Diego, MSG 242306z dated Sept 98.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990121:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a: Wrongful possession of marijuana.  Specification: Wrongful use of marijuana.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Confinement for 30 days, reduced to E-1.
	CA action 990121:  Sentence approved and ordered executed.

990218:	Applicant refused Medial Officer’s evaluation.

990406:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990406:	Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

990408:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was his failure to adhere to the CMC’s policy on drug abuse as evidenced by his use and possession of drugs. 

990414:	NJP for violation of UCMJ, Article 112a: Wrongful use and possession of marijuana in his BEQ Room 252, Building 43258 at 1stBn, 11thMar, 1stMarDiv.
Awarded forfeiture of $463.00 pay per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

990423:	SJA review determined the case sufficient in law and fact.

990423:	GCMCA [Commander, 1st Marine Division (Rein)] 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 19990428 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.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  Relief denied.

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.  

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 is evident 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 P1900.16E), 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