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

ex-Pvt, USMC
Docket No. MD00-00485

Applicant’s Request

The application for discharge review, received 000308, 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 000928.  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.  My Other Than Honerable Discharge was is inequitable because it was based on one isolated incident with no other adverse action, no prior problems and without regard to my extraordinary performances thus far.

Documentation

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

Copy of DD Form 214 (2 copies)
Twenty-five pages from applicant's service record (2 copies)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		940816 - 941016	COG

Period of Service Under Review:

Date of Enlistment:  941017		Date of Discharge:  951213

Length of Service (years, months, days):

	Active:    01  01  27
	Inactive:  None

Age at Entry:  17			Years Contracted:  4

Education Level:  10	 		AFQT:  44

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 			Conduct:  3.8 

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

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:

940815:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

950527:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully use marijuana, a controlled substance between April and May 1995.
Awarded forfeiture of $400.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

950719:	NAVDRUGLAB [San Diego, CA], reported applicant’s urine sample, received 950713, tested positive for THC.

950818:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement, specifically, your usage of marijuana, a controlled substance, while on leave on or about the months of April and May 1995 as identified by urinalysis testing, based on a premise of unit sweep NAVDRULAB message number R192028Z.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950908:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your positive urinalysis for THC.

950908:	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.

950908:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was drug abuse as evidenced by his positive urinalysis for THC.  The respondent's illegal drug use represents a flouting of Marine Corps policy on drug abuse and brings discredit upon the service.  By his actions, he has demonstrated that he has no potential for further military service.  

950918:	Substance Abuse Evaluation:  Evaluation revealed no substantial information which supports a pattern of drug or alcohol abuse.  

951109:	SJA review determined the case sufficient in law and fact.

951121:	GCMCA [Commanding General, 3d Marine Division] 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 951213 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).

In the applicant’s issue 1, the NDRB determined this issue is without merit.  The Board reviewed the applicant’s record and all accompanying documents for propriety and equity.  There were no errors in the discharge process or determination of the characterization of his discharge.  The board found that the one NJP on 950527 for violation of the UCMJ, Article 112a was sufficient to warrant an Other Than Honorable Discharge.  The board finds that the discharge was proper and equitable.  Relief denied.

The following is provided for the applicant's edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D).  However, 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, is considered.  The applicant should provide evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for relief based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He 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.  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 18 Aug 95 to 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 “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