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

ex-PVT, USMC
Docket No. MD01-00753

Applicant’s Request

The application for discharge review, received 010508, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested 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 011018.  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 (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I J___ S____ believe my discharge should be upgraded due to my performance while in the Marine Corps.  I was a very dedicated Marine that made a very bad mistake.  The main reason I made the mistake was I went home for leave for a lengthy period of time, which by the time my leave was over I was home for almost 2 months waiting on my next school to start.  While on my leave I also was on recruiting duty in which I recruited 2 new Marines in just 2 weeks.  I worked hard while in the Marine Corps & felt like when I made 1 mistake they just threw me away like a piece of trash.  It was the proudest moment of my life when I graduated from the Marine Corps and I feel if I hadn't made the mistake I made I could of retired from the Marine Corps and would have been a valuable asset for the Marines.  I feel that my duty while in the Marine Corps should be more than enough to at least upgrade my discharge to a honorable discharge.  Please review service record, thank you very much.

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:   USMC		None
	Inactive: USMCR(J)		910427 - 910512	COG

Period of Service Under Review:

Date of Enlistment:  910513		Date of Discharge:  920417

Length of Service (years, months, days):

	Active:  00  11  05
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  32

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (3)		Conduct:  3.7 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge 

Days of Unauthorized Absence:  None 

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

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

Chronological Listing of Significant Service Events:

910427:	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.

920117:	NAVDRUGLAB [Great Lakes, IL], reported applicant’s urine sample, received 920110, tested positive for [THC].

920124:	NJP for violation of UCMJ, Article 112a: Did on or about 920107 wrongfully use a controlled substance, to wit: Marijuana.
Awarded forfeiture of $392.00 per month for 2 months, reduction to E-1.  Not appealed.

920124:	Counseled for deficiencies in performance and conduct.  [Concerning my illegal drug involvement specifically, indicated through my positive test results received by msg (NAVDRUGLAB DTD 170802Z JAN 92 Batch No L021 assigned by MCDet, Ft. Lee, VA) which specifically found THC in my urine sample]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920203:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

920210:	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.  Applicant also waived right to appear before an Administrative Discharge Board contingent upon receiving a General Discharge Under Honorable Conditions.

920210:	Applicant letter to CG, Combat Development Command, MCB, Quantico, waiving the ADB, contingent upon receiving a General Discharge Under Honorable Conditions.

920210:	Applicant's Defense Counsel recommended that applicant's conditional waiver be approved.

920213:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was based upon your conviction of violation of Article 112a, Uniform Code of Military Justice at non-judicial punishment. 

920224:	Applicant evaluated and diagnosis includes that of No Diagnosis Apparent, Improper Use of Cannabis/enrolled.  The patient presented as cooperative, reasonable, fully oriented with no anomalies in thought, process nor affect/mood.  The Marine’s insight and judgement were appropriate and his attitude towards the referral process was good.  The patient was entered into Track II as it was felt that he could benefit from individual substance abuse counseling in adjacent to Alcoholics Anonymous meetings (at least two evenings weekly).  PVT S___ has been fully cooperative thus far.  He has been timely, interested and has learned important skills to prevent further occasions of abuse.  Prognosis is presently good and should remain so, providing that PVT Smith continue to utilize the tools/resources that he has available to him.

920309:	Conditional waiver disapproved, CG directed an Administrative Discharge Board.

920320:	Counseled for deficiencies in performance and conduct.  [Failing to fall out for organized unit P.T., and being U.A. for same].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920330:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

920408:	SJA review determined the case sufficient in law and fact.

920413:	GCMCA [Commanding General, Marine Corps Combat Development Command] 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 920417 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).

Issue 1.  The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions, no matter how well the applicant may have otherwise performed.  In the applicant’s case, his conduct and proficiency markings are below average.  The applicant’s chain of command painted a negative impression of his ability.  The discharge was proper and equitable.  Relief denied.

Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice 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.  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, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He 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.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

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