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

ex-LCpl, USMC
Docket No. MD01-00219

Applicant’s Request

The application for discharge review, received 001211, 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 010601.  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 discharge under other than honorable conditions was undeserved because it was based on one isolated incident within 39 months of service with no other adverse actions.

2.  My discharge under other than honorable conditions was undeserved because I clearly realized the mistake I made and strongly desired to remain on active duty and fulfill my enlistment contract.

Documentation

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

Copy of Certificate of Commendation dated September 18, 1998
Copy of Meritorious Mast dated March 17, 1999
Copy of promotion to Corporal dated December 2, 1998
Copy of Certificate of Achievement dated March 17, 1999
Eight pages from applicant's service record
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960423 - 961020	COG

Period of Service Under Review:

Date of Enlistment:  961021		Date of Discharge:  000209

Length of Service (years, months, days):

	Active:    03  03  19
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  13			AFQT:  97

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (8)			Conduct:  4.3 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, Certificate of Commendation

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:

960923:	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.

990901:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully use a controlled substance, to wit: MDA/MDMA on 16Aug99.
Awarded forfeiture of $400.00 per month for 2 months, restriction and extra duties for 45 days, reduction to LCpl.  Not appealed.

991005:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

991005:	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.

991022:	Commanding officer recommended discharge under other than honorable conditions suspended for 12 months by reason of misconduct due to drug abuse.  The factual basis for this recommendation was incident of illegal drug use as identified in narrative summary (encl (6)) where applicant admitted to inservice use of ecstasy.  

000106:	SJA review determined the case sufficient in law and fact.

000111:	GCMCA [Commanding General, 2d Marine Division, II Marine Expeditionary Force] 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 000209 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).

The applicant’s first issue states:  “My discharge under other than honorable conditions was undeserved because it was based on one isolated incident within 39 months of service with no other adverse actions.”  The NDRB reviewed the applicant’s service record and found the negative aspects of the applicant’s service outweighed the positive.  Specifically, the applicant was found guilty of using illegal drugs- violation of UCMJ Article 112a.  This offense is considered a serious military offense.  Relief based on this issue is not warranted.

The applicant’s second issue states:  “My discharge under other than honorable conditions was undeserved because I clearly realized the mistake I made and strongly desired to remain on active duty and fulfill my enlistment contract.”  The Board found this issue without merit and non decisional.  The applicant entered the Marine Corps with a pre service drug waiver.  The applicant was fully aware of the USMC’s policy on drug use and abuse and chose to use illegal drugs.  Relief is not warranted.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record.  Relief is not warranted.

The applicant 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 recommended

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