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

Docket No. MD01-00319

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

ex-PFC, USMCR
Docket No. MD01-00319

Applicant’s Request

The application for discharge review, received 010124, 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 010906.  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 (with admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 

Documentation

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

Character reference from Member of Congress dated October 31, 2000
Character reference from House of Representative dated November 9, 2000
Letter from applicant dated October 31, 2000
Letter of reference from district attorney, Daupin County undated
Character reference dated November 2, 2000
Character reference from Pastor, Tree of Life Lutheran Church dated November 3, 2000
Character reference dated November 2, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  850305		Date of Discharge:  880505

Length of Service (years, months, days):

	Active:    00  03  23
	Inactive:  02  10  07

Age at Entry:  17			Years Contracted:  6

Education Level:  12			AFQT:  51

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (10)		Conduct:  4.3 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  Letter of Appreciation (2)

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (admin discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

850328:	Enlistment contract into the USMCR documents acknowledgement of the requirement to participate in 48 scheduled drills and not less than 14 days of annual training per year or perform annually not more than 30 days of active duty.

850603:	Applicant to initial active duty for training.

850828:	Applicant released from initial active duty training.

860309:	Counseled for deficiencies in performance and conduct.  [Attendance of Second Increment IADT for MOS training during the period 860610 to 860731.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

870613:	Applicant to active duty for training.

870627	Applicant release from active duty.

870717:	NAVDRUGLAB, Jacksonville, FL, reported applicant’s urine sample, received 870706, tested positive for THC.

870823:	Applicant received Level I drug and alcohol counseling and placed on unit's urinalysis screening program.

870916:	NAVDRUGLAB, Jacksonville, FL, reported applicant’s urine sample, received 870901, tested positive for THC.

871002:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongful possession of controlled substances at CoE, 2/25Mar, 4thMarDiv; NAVDRUGLAB Jacksonville, FL msg 170925Z 870700 ZYB, identified SNM's urine positive for THC.  Random urinalysis taken on 870627.
Awarded forfeiture of $31.00 per month for 1 month, reduction to PFC.  Not appealed.

871030:	NAVDRUGLAB, Jacksonville, FL, reported applicant’s urine sample, received 871019, tested positive for THC.

871125:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

880204:	Applicant to active duty for training.

880216:	Applicant released from active duty training.

880305:	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.  

880415:	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.

880427:	GCMCA, Commanding General, 4^th 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 880505 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 introduced no decisional issues for consideration by the Board.

The applicant was found guilty at NJP of violation of UCMJ Article 112a, wrongful use
of controlled substance, while on active duty.  After testing positive for THC on the first
occasion, the applicant received Level I drug and alcohol counseling and was placed on
the unit’s urinalysis screening program.  The applicant then tested positive on two
subsequent urinalysis’s for THC.  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 provided several character references but 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 P1900.16C), Change 4, effective 29 Jul 87 until 26 Jun 89.

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 112a, wrongful use of a controlled substance.

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 “afls10.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/A9223/A9439