Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. MD00-00277

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

 ex-Pvt, USMC
Docket No. MD00-00277

Applicant’s Request

The application for discharge review, received 991221, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 000817.  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 (verbatim)

1.  My discharge was inequitable because it was based on one isolated incident in 16 months of service with no other adverse action.  Since the time of my discharge I have become completely clean and have maintained a sober and positive attitude and also a great outlook on life.  I am requesting for the time being that my discharge be upgraded to General under Honorable conditions.

Documentation

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

Copy of DD Form 215
Copy of DD Form 214
Twenty-four pages from applicant's service record
Copy of appointment of Veteran's Service Organization as claimant's representative dated November 12, 1999

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		970410 - 970615	COG

Period of Service Under Review:

Date of Enlistment:  970616		Date of Discharge:  980831

Length of Service (years, months, days):

	Active:    01  02  16
	Inactive:  None

Age at Entry:  17			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (4)			Conduct:  4.0 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  MM 

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:

970327:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

980422:	NAVDRUGLAB, San Diego, CA reports urine sample received 980416 tested positive for THC.

980423:	Counseled for deficiencies in performance and conduct.  [Disrespect in deportment towards an NCO.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980423:	Counseled for deficiencies in performance and conduct.  [Use of THC as identified through urinalysis testing as evidenced by NAVDRUGLAB San Diego msg R 2220228 Apr 98 Batch no. W959 Specimen no. 02. Lab Acc. No. 59804096074 which tested positive for THC.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980511:	Substance Abuse/Dependence evaluation: Diagnosis:  Alcohol abuse, alcohol dependence.  Meets criteria for abuse/dependence of ETOH.

980623:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 112A.
	Specification: Wrongful use of marijuana.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Forfeiture of $617.00, confinement for 30 days, reduced to Pvt.
	CA action 980623: Sentence approved and ordered executed.

980720:	Applicant refused rehabilitation treatment.

980720:	Counseled for deficiencies in performance and conduct.  [Pending mandatory administrative separation processing as a result of your summary court martial conviction.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980723:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

980723:	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.

980727:	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 failure to conform to the standards of the Marine Corps.

980804:	GCMCA [Commanding General, 1^st Marine Division (Rein)] 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 980831 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 applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 to Present. 

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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6600/A9455/A9235/A9217/