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

ex-LCpl, USMC
Docket No. MD99-00895

Applicant’s Request

The application for discharge review, received 990615, 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 000410.  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. My discharge was based solely on drug use, and so warrants an upgrade to honorable I only used drugs once during my service and it was experimentally.  The instance took place off base and when I was off duty.  It did not affect my ability to perform my duties.

2.  Aside from the drugs, my service record was satisfactory, and so warrants an upgrade to honorable.  I served a total of three years, eleven months, and seventeen days of my four year contract with only a few, minor infractions.  I served over seas and was awarded the "Sea Service Deployment Ribbon", and the "National Defense Service Medal".  My last command promoted me to corporal, and had no problems with me other than the one instance.

3.	My record of promotions showed I was generally a good service member, and so warrant an upgrade to honorable. It wasn't until I was allowed to transfer units,that I was promoted to the rank of corporal.  My prior command had selected me as some sort of example, and inflicted multiple NJP's and "office hours", to keep me from being promoted.  My last command had no discipline problems with me, other than the one instance that I used drugs.

4.  I was so close to finishing my tour that it was unfair to give me a bad discharge, and so warrants an upgrade to honorable.  As I mentioned, I served all but twelve days of my active duty contract.  I even had accumulated sixty days of leave that, had I been allowed to take them, I would not have been there for the drug test.

5.  I have been a good citizen since discharge, and so warrants an upgrade to honorable.  It has been almost seven years since my bad discharge, and I have not had any problems with the law.  I also, don't have any traffic citations.  The instance that caused my bad discharge, happened a long time ago, and I am confident that you will find justification in upgrading my discharge to honorable.

6. Since discharge, I have enrolled in the California Maritime Academy.  I am perusing a degree in Maritime Transportation.  Upon graduation, the US Coast Guard will license me as a Third Mate.

Documentation

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

Copy of DD Form 214 (3 copies)
Copy of DD Form 149

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		880122 - 881029	COG

Period of Service Under Review:

Date of Enlistment:  881030		Date of Discharge:  921016

Length of Service (years, months, days):

	Active:    03  11  17
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  73

Highest Rank:  CPL

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (11)		Conduct:  4.0 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM

Days of Unauthorized Absence:  5 

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:

880112:	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.

900105:	Counseled for deficiencies in performance and conduct.  [Base driving privileges being suspended for 3 months beginning 891206.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900215:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence 0700, 900207 to 0659, 900212 (5 days/surrendered).
Awarded forfeiture of $196.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture suspended for 3 months.  Not appealed.

900328:	Counseled for deficiencies in performance and conduct.  [Revocation of driving privileges for 24 months.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900413:	Vacate suspended forfeiture awarded at NJP dated 900215.

900627:	NJP for violation of UCMJ, Article 92:
Specification: Violated CO Order 1600 by having a female in the barracks on 2000, 900601.
Violation of UCMJ, Article 134:
Specification: Fail to pay debts totaling $504.38.
Violation of UCMJ, Article 86: failed to be at appt. place of duty. 
Specification: Failed to be at appointed place of duty on 0730, 900618.
Awarded forfeiture of $196.00 per month for 1 month, restriction for 14 days.  Not appealed.

900629:	Counseled for deficiencies in performance and conduct.  [Frequent involvement with military authorities.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900907:	Applicant successfully completed Level I.

901121:	NJP for violation of UCMJ, Article 86:
Specification: Failed to be at his appointed place of duty on 0520, 901115.
Violation of UCMJ, Article 92 (2 specs):
Specification 1: Disobey a lawful order by not checking out prior to going on liberty on 901112.
Specification 2: Disobey a lawful order by failing to be on base at the prescribed time, 2400, 901115.
Awarded forfeiture of $405.00 per month for 1 month, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

910430:	Counseled for deficiencies in performance and conduct.  [Failure to follow instructions.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910709:	Substance Abuse Screening: Diagnosis: Alcohol abuse.  Recommendations: Evaluation by medical officer, Level II treatment, monitored attendance at 3 AA meetings weekly until treatment, weekly screening by unit SACO until Level II treatment.

910930:	Counseled for deficiencies in performance and conduct.  [Financial irresponsibility.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920227:	Applicant successfully completed Level II out-patient program at Consolidated Substance Abuse Control Center on 911127.

920828:	NAVDRUGLAB [San Diego, CA], reported applicant’s urine sample, received 920825, tested positive for cocaine.

920916:	NJP for violation of UCMJ, Article 112A:
Specification: On or in the civilian community, between 920813 and 920818, tested positive for cocaine.
Violation of UCMJ, Article 92: Violated Base Order P5000.2H by having several open alcohol containers in the barracks on 0745, 920915.
Awarded forfeiture of $500.00 per month for 2 months, restriction and extra duties for 45 days, reduction to LCpl.  Not appealed.

920917:	Medical evaluation for drug abuse found the applicant to be a drug/alcohol abuser, not drug/alcohol dependent.   

920917:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

920917:	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.

920921:	Counseled for deficiencies in performance and conduct.  [Drug abuse.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant did not desire to make a statement.

920921:	Applicant offered and accepted treatment in conjunction with discharge for drug abuse.

920928:	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 Bn NJP held on 16Sep92 for the wrongful use of cocaine a scheduled II controlled substance.

921001:	Counseled for deficiencies in performance and conduct.  [Drug abuse.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant did not desire to make a statement.

921001:	Applicant offered and declined treatment in conjunction with discharge for drug abuse.

921006:	SJA review determined the case sufficient in law and fact.

921008:	GCMCA [Commanding General, 1st Marine Division (Rein), FMF] 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 921016 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).

In the applicant’s issue 1, the Board found the applicant was discharged for drug use, which required administrative separation from the Marine Corps. The applicant, on 880112, acknowledged that he was briefed and understood the Marine Corps’ policy concerning illegal drug use.  He disobeyed that policy when he knowingly took drugs.  Relief denied.

Issues 2 and 3 states that the applicant was a good Marine and satisfactory performer.  These issues are not relevant to the discharge.  He was discharged for drugs, not performance.  Relief denied.

The Board determined that the applicant was within a month of his EAS, issue 4, but this is not relevant.  He was still a Marine and required to abide by Marine Corps policies.    

Issue 5 indicates that the applicant is a good citizen, with no involvement with the law.  The Board is unable to verify that.  No documentation has been provided to the Board.

Issue 6 is not relevant.

 The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  The applicant must be aware that 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 is reminded that he 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 highly 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 [ e.g., Article 86, unauthorized absence for more than 30 days].

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023