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

 ex-Pvt, USMC
Docket No. MD02-00093

Applicant’s Request

The application for discharge review, received 011010, 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 designate a 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 020620.  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 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 this application.

Documentation

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

Applicant's undated letter to the Board
Letter to Applicant from Mayor P_ H. J_ dtd Sep 20, 2001
Character Reference letter from J_ C_, Manager, BP Oil Company, undtd 
Meritorious Promotion Certificate dated 11 Mar 99
Meritorious Mast Certificate dated 28 Oct 99
Meritorious Mast Certificate dated 15 Nov 99
Meritorious Mast Certificate dated 28 Jan 00
Meritorious Mast Certificate dated 11 Mar 99
Copy of DD Form 214
Applicant's undated letter to the Board

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980312 - 980914	COG

Period of Service Under Review:

Date of Enlistment:  980915		Date of Discharge:  001213

Length of Service (years, months, days):

	Active:    02  02  29
	Inactive:  None

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 

Education Level:  12			AFQT:  74

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (8)			Conduct:  3.8 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  MM(3), Rifle Marksmanship Badge

Days of Unauthorized Absence:  Non

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:

990629:	Counseled for deficiencies in performance and conduct [on 990616, 0530 till 0700 was to report to NBC warehouse and didn't show up, resulting in the battalion missing a quota (A PUNISHABLE VIOLATION OF ARTICLE 86)].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
991217:	NJP for violation of UCMJ, Article 112a:  did test positive for Marijuana (THC).
Awarded reduction to E-2, forfeiture of $537.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

991217:	Counseled for deficiencies in performance and conduct [due to recent NJP on 991217].  Informed that I may be processed for separation by falling under one of the following two categories:  Minor disciplinary actions (documented series of at least 3 minor disciplinary infractions) during current enlistment which have/would have been disciplined under Art. 15, NJP.  Pattern of misconduct (pattern of more serious infractions including 2 or more serious infractions).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

[DISCHARGE PACKAGE NOT CONTAINED IN SERVICE RECORD]

000405:	GCMCA [CG, 2D FSSG, Camp Lejeune] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse, but suspended for period of 12 months.

000411:	Counseled concerning administrative discharge.  Applicant currently on suspended OTH discharge due to testing positive for THC.  Advised that any further misconduct will result in receiving an Other Than Honorable Discharge from the Marine Corps.   Necessary corrective actions explained and sources of assistance provided.  

000522:	Counseled for deficiencies in performance and conduct [violation of Article 86 of UCMJ - on 000515 you were UA from 1300 formation and you failed to show up for the rest of the day].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000522:	Counseled for deficiencies in performance and conduct [violation of Article 92 of UCMJ - caught not wearing your seat belt aboard MCB Camp Lejeune].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000717:	NJP for violation of UCMJ, Article 112a: on or about 000703 test positive for cocaine.
Awarded reduction to E-1, forfeiture of $502.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

000822:	SJA - vacation of suspended administrative separation proceedings are sufficient in law and fact.

000830:	GCMCA [CG, 2D FSSG, Camp Lejeune] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse, upon completion of Level III treatment. 

001103:	Entered Level III Residential Program at Naval Medical Center Addictions Rehabilitation Department, Norfolk, VA, with a diagnosis of Alcohol/Polysubstance Dependency.  

001206:	Successfully completed Level III treatment.  Returned to command.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 001213 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. The applicant’s discharge characterization accurately reflects his service to his country. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions.  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 P1900.16E), 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 “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