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

ex-PVT, USMC
Docket No. MD01-00225

Applicant’s Request

The application for discharge review, received 001215, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010808.  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-Drug abuse (administrative discharge board required but waived) authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I served in the Army N.G and graduated with honors also received excellent pro & con marks.  I graduated most physically fit over 900 more grads.  I also graduated from Marine boot camp with honors 100% physical fitness score, never received less than 100% on any physical fitness test also had excellent pro & con marks - I was already pending a medical discharge for P.F.P.S when my command forced me to go to SACO I spoke to legal team Delta and they told me I was doing nothing wrong dating a separated women my command said they don't care, you won't see her again, they were wrong.

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:   USANG		880112 - 880415	HON
Active:   USMC		None
	Inactive: USMCR(J)		920626 - 920914	COG

Period of Service Under Review:

Date of Enlistment:  920915		Date of Discharge:  940119

Length of Service (years, months, days):

	Active:  01  04  05
	Inactive:  None

Age at Entry:  24			Years Contracted:  4 

Education Level:  12			AFQT:  47

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.77 (4)		Conduct:  3.7(4)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Sharpshooter Badge, GCM 

Days of Unauthorized Absence:  None 

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:

920626:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

931018:	NJP for violation of UCMJ, Article 112a: At an unknown time and location, did wrongfully use marijuana, then known to SNM to be a controlled substance, to wit: SNM urinalysis dated 930901 returned positive for THC, CamPen.
Awarded forfeiture of $407.00 per month for 2 months, restriction and 
extra duties for 45 days, reduction to E-1.  Not appealed.

931018:	Commanding Officer, Company E recommendation for administrative separation.

931018:	First Lieutenant to Company Commander, Company E recommendation for administrative separation.

931018:	Staff Sergeant to Company Commander, Company E recommendation for administrative separation.

931021:	Medical evaluation indicates applicant was referred to CSACC for self admitted THC US, applicant admits using marijuana 5-6 x in life, he self referred for use thinking it would be better to admit that get caught.  He thought that he would be allowed to stay on active duty if he admitted his use.  Recommended for Level I

931029:	Counseled for deficiencies in performance and conduct.  [Poor judgment, lack of maturity, failure to conform to rules and regulations of he UCMJ, and failure to comply with Marine Corps Drug Policy] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931130:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

931130:	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.

931206:	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 non-judicial punishment dated 931015, evidencing your use of a controlled substance, specifically marijuana.  

940107:	SJA review determined the case sufficient in law and fact.

940111:	GCMCA [Commanding General] 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 940119 under other than honorable conditions for misconduct due to drug abuse (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

The applicant’s issue states:  “I served in the Army N.G and graduated with honors also received excellent pro & con marks.  I graduated most physically fit over 900 more grads.  I also graduated from Marine boot camp with honors 100% physical fitness score, never received less than 100% on any physical fitness test also had excellent pro & con marks - I was already pending a medical discharge for P.F.P.S when my command forced me to go to SACO I spoke to legal team Delta and they told me I was doing nothing wrong dating a separated women my command said they don't care, you won't see her again, they were wrong.”  The applicant’s issue is non decisional.  The applicant was discharged after being found guilty at NJP of violation of UCMJ Article 112a-wrongful use of controlled substance.  The negative aspects of the applicant’s service outweigh his positive contributions.  Relief is not warranted.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record.  Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended

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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a wrongful use of a controlled substance.

C.  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.  

D.  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.

E.  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 “afls10.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