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

  ex-PVT, USMC
Docket No. MD04-01361

Applicant’s Request

The application for discharge review was received on 20040827.  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 20050330.  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. ”My discharge was inequitable because it was based on an isolated incident in 13 months of active service with no other adverse action.  In fact, on 980514 I received the Good Conduct Medal.  I also received the Rifle Marksmanship Badge.  During my 13 months of service, I completed the Recruit Training (male) 12wks educational program, 9704, Marine Combat Training 02wks, 9708 and Average Operations Course 12wks; 9712, all satisfactorily.  My specialty was 7212-2d Low Altitude Air Defense Gunner aside from this one isolated incident, I was an exemplary Marine.”

Documentation

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

Applicant’s DD Form 214 (2)
Letter from Applicant dated September 17, 2004 (2)
Employment Reference Letter dated September 17, 2004 (2)
Response Letter from Applicant dated March 1, 2005

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		970326 - 970427	COG

Period of Service Under Review:

Date of Enlistment:  970428		Date of Discharge:  980710

Length of Service (years, months, days):

	Active:    01  02  13
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  80

Highest Rank:  PFC			MOS:  7212

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (4)			Conduct:  3.9 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  RMB

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:

970325:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

980223:	On base driving privileges, both civilian and government, suspended due to use of illegal drugs.

980224:	Applicant’s statement to USMC Criminal Investigation Division.  Applicant admits to smoking marijuana on two occasions during  Jan and Feb 1998.

980224:	Counseled concerning my illegal involvement, specifically, positive urinalysis of illegal substance.  Advised that processing for administrative separation for misconduct is mandatory per MCO P1900.16.

980309:	SACC evaluation indicates applicant does not meet DSM IV criteria for cannabis abuse or dependence.

980317:	NAVDRUGLAB JACKSONVILLE, FL, reported Applicant’s urine sample, received 980311, tested positive for [THC].

980514:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a: Wrongful use of marijuana.  Charge II: violation of the UCMJ, Article 107: Intent to deceive with a false official statement.
	Finding:  to Charge I and II and the specification thereunder, guilty.
	Sentence:  Forfeiture of $616.00 pay per month for 1 month, reduced to E-1, confinement for 30 days.
	CA action 980514:  Sentence approved and ordered executed.

980615:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse.  The basis for this recommendation is your [Applicant’s] in-service drug use as evidenced by Navy Drug Lab Jacksonville, Florida, message R172232Z March 1998 and your [Applicant’s] summary court-martial conviction of 14 May 1998.  The least favorable characterization of service which you may receive is under other than honorable conditions. Although the Commanding General will make the determination of characterization if you are separated, I am recommending you receive an other than honorable characterization of service.

980615:	Applicant advised of 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.

980615:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation is drug use as evidenced by Naval Drug Lab, Jacksonville, Florida, message R172232Z March 1998 and a summary court-martial conviction of 980514 

980622:	SJA review determined the case sufficient in law and fact.

980622:	GCMCA, Commanding General, 2d Marine Aircraft Wing, 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 19980710 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 states his discharge was based on one isolated incident in “13 months.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for Marines who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  In addition to a positive urinalysis test, the applicant provided a voluntary written statement in which he admitted using illegal drugs on two occasions. The Applicant’s service record is marred by a summary court-martial for illegal drug use and intent to deceive with a false official statement, thus substantiating the misconduct for which he was separated.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle,  and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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 31 August 2001. 

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy 	Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023