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

Docket No. MD00-00771

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

 ex-Pvt, USMC
Docket No. MD00-00771

Applicant’s Request

The application for discharge review, received 000530, 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 010201.  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.  Claims I was identified by a random urinalysis test, when in fact I was self admitted.

2.  Attached written request.

Documentation

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

Letter from Applicant (3pgs)
Copy of CO's Message
Copy of Separation Travel Pay Certificate

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		911002 - 911210	COG

Period of Service Under Review:

Date of Enlistment:  911211		Date of Discharge:  930216

Length of Service (years, months, days):

	Active:  01  02  06
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  53

Highest Rank:  PVT

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (3)		Conduct:  3.5 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Rifle Marksman Badge, LOC 

Days of Unauthorized Absence:  13 

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:

910928:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

920603:	Counseled for deficiencies in performance and conduct.  [Conduct was substandard in that you violated military regulations by your underage consumption of alcoholic beverages in Jacksonville, N.C. on 920530] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920603:	NJP for violation of UCMJ, Article 134: Unlawfully and willfully consumed an alcoholic beverage, and unknown quantity of beer, in a manner not authorized by North Carolina General Statue 18B, while under the legal drinking age of 21 years, in violation of the law referred at 1800 on 920530, in Jacksonville, North Carolina.
Awarded forfeiture of $300.00 per month for 2 months, restriction and 
extra duties for 30 days.  Not appealed.

920915:	NAVDRUGLAB [SAN DIEGO, CA], reported applicant’s urine sample, received 920910, tested positive for THC.

921029:	NJP for violation of UCMJ, Article 86: UA (AWOL) from 0400, 921014 to 1837, 921027, violation of UCMJ, Article 112a: Wrongfully use marijuana, a controlled substance on or about 920831.
Awarded forfeiture of $360.00 per month for 2 months, restriction for 60 days, reduction to E-1, reduced to PVT.  Not appealed.

undated:	SACO evaluation indicates applicant tested positive on unit test.

921210:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The basis for this recommendation is your NJP which evidenced the illegal use of drugs.

921210:	Applicant advised of his rights and having not 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.

921210:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct, specifically his abuse of illegal drugs. 

921219:	Medical evaluation for drug abuse found the applicant to be psychologically drug dependent.

930113:	Applicant declined Veterans Administrations' Drug and Alcohol Program.
 
930115:	SJA review determined the case sufficient in law and fact.

930203:	GCMCA [Commander, 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 930216 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 Board found nothing in his records to substantiate his claim that he self admitted the use of THC.  The Board found that the applicant was one of 190 Marines who under went a urinalysis test on 3 Sept 1992.  He was one of 2 whose samples came back positive for drug usage.  Furthermore, the Board found that the applicant acknowledged, on his enlistment contract, that he had tried marijuana 4 times prior to that time.  Relief denied.

In issue 2 the applicant stated “I was feeling discouraged and using poor judgement decided to go along with a few others on an idea of popping on a urinalysis, and admitting that I had used, if not discharged we would …” .  Clearly this statement indicated to the Board that the applicant was aware of his actions and the repercussions that could have ensued.  Relief denied.

The applicant wishes to serve in the Navy.  This Board has no jurisdiction over the enlistment of personnel into the Navy.  The applicant should see a Navy Recruiter.

 The following is provided for the applicant’s edification.  The NDRB is authorized to consider 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.  However, there is no law or regulation that 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 be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record.   In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. The applicant should produce 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 clemency based on post-service conduct.  The applicant is reminded that he remains eligible for a personal appearance hearing provided that an 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

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/A0157/A9439/A9217