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

ex-Pvt, USMC
Docket No. MD00-00638

Applicant’s Request

The application for discharge review, received 000424, requested that the characterization of service on the discharge be changed to honorable or 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 001102.  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/INVOL DIS (BOARD WAIVED (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  To reflect on Enclosure #6 Enclosure #7 Enclosure #8 be compared to clemency matters, from Capt S_, defense counsel to commanding officer MWSS-371 MCAS Yuma.

2.  DD Form 2329, Record of Trial by Summary court martial: Because of the not guilty verdict found in this case, I feel I was totally made prejudice of in this case by my peers and not given a fair trial.

Documentation

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

Statement from applicant dated February 14, 2000
Forty-five pages from applicant's service record
Copy of DD Form 214 (2 copies)
Statement from applicant dated May 17, 2000
Copy of Certificate of Completion dated June 15, 1999
Copy of Certificate dated November 11, 1999
Copy of Certificate of Baptism dated July 25, 1999
Copy of Certificate dated February 16, 1999
Copy of Certificate dated April 1, 1999, April 11, 1999
Copy of grade report dated April 1, 1999, April 11, 1999
Copy of Certificate of Graduation dated April 2, 1999
Copy of Certificate for Outstanding Achievement dated March 31, 1999
Copy of Certificate of Completion of Substance Abuse Program dated March 17, 1999
Copy of Certificate of Completion dated March 26, 1999
Copy of Certificate of Participation dated March 30, 1999
Glendale Community College account summary dated May 10, 2000
Character reference dated May 16, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		910715 - 950807	COG

Period of Service Under Review:

Date of Enlistment:  910715		Date of Discharge:  950807

Length of Service (years, months, days):

	Active:    04  00  23
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 (3 months extension)

Education Level:  12			AFQT:  59

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (10)		Conduct:  4.2 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, GCM, Certificate of Commendation, Letter of Appreciation 

Days of Unauthorized Absence:  1 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

910508:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

950221:	NAVDRUGLAB [San Diego, CA], reported applicant’s urine sample, received 950213, tested positive for amp/methamp.

950301:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence from 0730 to 1100 on 16Feb95 from appointed place of duty at MWSS-372 S-3 and illegal drug involvement, to wit: NAVDRUGLAB msg R212604Z Feb 95 type of drug use was amp/methamp.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950414:	NAVDRUGLAB [San Diego, CA], reported applicant’s urine sample, received 950411, tested positive for amp/methamp.

950427:	NAVDRUGLAB [San Diego, CA], reported applicant’s urine sample, received 950421, tested positive for amp/methamp.

950501:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement, specifically, usage which was identified by urinalysis test.  NAVDRUGLAB msg R 142016Z Apr 95 type of drug use was amp/methamp.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950512:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 86 (2 specs):
	Specification 1: Absent from his unit on 0730, 3Apr95 to 0730, 4Apr95 (1 day).
	Specification 2: Fail to go at the prescribed time to his appointed place of duty on 0730, 17Apr95.
	Charge II: violation of the UCMJ, Article 112A (3 specs): 
	Specification 1: Wrongfully use amphetamine/methamphetamine on 7Feb95.
	Specification 2: Wrongfully use amphetamine/methamphetamine between 1Apr95 and 4Apr95.
	Specification 3: Wrongfully use amphetamine/methamphetamine between 14Apr95 and 17Apr95.
	Finding:  to Charge I and II and the specifications thereunder, guilty.
	Sentence:  Confinement for 30 days, reduced to Pvt.
	CA action 950526:  Sentence approved and ordered executed.

950517:	Substance Abuse Counseling Center evaluation for alcohol/drug abuse found the applicant to be an alcohol/drug abuser, not dependent.   

950509:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

950510:	Applicant advised of his rights and having consulted 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.

950621:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was NAVDRUBLAB messages R212004Z Feb 95, 142016Z Apr 95, 272026Z Apr 95.  

950715:	Applicant extended enlistment for 3 months.

950725:	SJA review determined the case sufficient in law and fact.

950727:	GCMCA [Commanding General, 3d Marine Aircraft Wing] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

950731:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully use amphetamine/methamphetamine between 5Jun95 to 5Jul95.
Awarded restriction for 7 days.  Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 950807 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).

The Board found that the applicant was positive for drugs on 3 separate occasions and was brought to a summary court martial for 3 specifications of drug use and 2 specifications of unauthorized absence.  The applicant then had an additional NJP for drug use at the time the Marine Corps was in the process of administratively separating the member from the service.

In the applicant’s issue 1, the Board reviewed a letter submitted by the applicant’s defense counsel concerning clemency matters for the applicant dated 950522.  Unfortunately, the Board found that the mitigating circumstances did not outweigh the serious misconduct that the applicant committed.  The Board found that his service was accurately characterized as having been served under other than honorable conditions.  No relief granted.

In the applicant’s issue 2, the applicant submitted DD Form 2329, Record of Trial by Summary Court-Martial dated 931102 finding the applicant Not Guilty.  The Board found that this has no bearing on the applicant’s drug use, unauthorized absences and resulting Summary Court Martial of 950512, ultimately leading to the applicant’s discharge from the Marine Corps.  No relief will be granted based on 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 ample 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

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