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

ex-PFC, USMC
Docket No. MD99-01224

Applicant’s Request

The application for discharge review, received 990917, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000727.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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

1.  (EQUITY ISSUE) This former member opines that his UOTHC discharge is erroneous because he never used illegal drugs.  On the basis, he avers that upgrade of his characterization of service is warranted.

2.  (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 his application. 

Documentation

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

  Copy of DD Form 214
       Statement of Applicant

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		950714 - 951105	COG

Period of Service Under Review:

Date of Enlistment:  951106		Date of Discharge:  981222

Length of Service (years, months, days):

	Active:    03  00  04
	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:  3.8 (8)			Conduct:  3.7 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDM, Sharpshooter Rifle Badge 

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:

950612:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

971205:	NJP for violation of UCMJ, Article 91: Disrespect Cpl R____ , by saying to him "Shut the fuck up" and "You don't fucking talk to me like one or your children; violation of UCMJ, Article 92: Violate UCMJ by saying "fuck off" when told by Cpl R____ and Cpl Y____ to get out of his sleeping bag and report to his place of duty.
Awarded forfeiture of $244.00 per month for 1 month, restriction and 
extra duties for 14 days.  Not appealed.

980724:	NAVDRUGLAB [JACKSONVILLE, FL], reported applicant’s urine sample, received 980715, tested positive for [THC].

980731:	Substance Abuse Report: indicates applicant's diagnosis was Drug Abuse (Isolated Incident).

980804:	Counseled this date concerning deficiencies; continuation on limited duty and light duty which resulted in you not be on fully duty for a year.  The PEB found you to be fit for full duty and in terms after one day of full duty you went back on light duty for another 30 days.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.    

980807:	NJP for violation of UCMJ, Article 112a: Knowingly and wrongfully used marijuana.
Awarded forfeiture of $519.00 per month for 2 months, restriction for 60 days, reduced E-2.  Not appealed.

980817:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

980817:	Applicant advised of his rights and having elected 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.

980724:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was respondent's incident of illegal drug use as identified in NavDrugLab msg 242340Z July 

981008:	SJA review determined the case sufficient in law and fact.

981112:	GCMCA [Commander, 2d Marine Division, II Marine Expeditionary Force] 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 981109 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).

The applicant’s representative submitted the following as issue 1: (EQUITY ISSUE) This former member opines that his UOTHC discharge is erroneous because he never used illegal drugs.  On the basis, he avers that upgrade of his characterization of service is warranted.  The Board found nothing in the record to indicate that the applicant did not take drugs.  He tested positive for THC, a drug he knew was illegal.  He acknowledged his rights, conferred with a lawyer, and accepted NJP.  He did not appeal the NJP.  This action clearly indicated to the Board that the applicant was guilty of using THC.  Relief denied.
  
The applicant’s representative submitted the following as issue 2: (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 his application.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV).  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The applicant should produce evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct. He is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 to 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