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Docket No. MD01-00372

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

 ex-PVT, USMC
Docket No. MD01-00372

Applicant’s Request

The application for discharge review, received 010130, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed Veterans of Foreign Wars as his 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, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because it was based on one isolated incident in 17 months of service with no other adverse action.  I strongly believe that if I would of received a second chance, I would of not only learned from my mistake, but could of helped others avoid the same mistake.  By upgrading my discharge you will be giving me the opportunity to succeed outside the military.

2.  (VFW Issue) This office, acting as counsel, has reviewed the naval records of the above named applicant and respectfully submits them for consideration in accordance with the application for review of his naval record.  We ask in accordance with Department of Defense Directive Number 1332.28E.4 EQUITY In the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the DRB viewed in conjunction with the factors listed in this subparagraph and the regulation under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.  Areas of consideration include, but are not limited to:E4.3.1.12 RECORDS OF NONJUDICIAL PUNISHMENT.

Documentation

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

Commanding Officer Error on Non-Judicial Punishment Letter
Copy of Accused's Acknowledgement of Appeal Rights
Character Reference Letter 
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		971205 - 980907	COG

Period of Service Under Review:

Date of Enlistment:  980908		Date of Discharge:  000126

Length of Service (years, months, days):

	Active:    01  04  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  75

Highest Rank:  PVT

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.5 (3)			Conduct:  3.2 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  Sharpshooter Rifle Badge 

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:

971205:	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.

991212:	NJP for violation of UCMJ, Article 112a: Did test positive for a controlled substance (COCAINE).
Awarded forfeiture of $479.00 per month for 2 months (1 month suspended for 6 months), restriction for 45 days (15 days suspended for 6 months), extra duties for 45 days (15 days suspended for 6 months).  Not appealed.

991212:	Applicant refused medical officer's evaluation.

991215:	NAVDRUGLAB [SAN DIEGO, CA], reported applicant’s urine sample, received 991208, tested positive for [COCAINE].

991222:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

991223:	Platoon Sergeant recommended immediate administrative discharge from the United States Marine Corps, for wrongful use of a controlled substance (COCAINE).

000107:	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.

000107:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was Private Z____'s use of drugs evidenced by enclosure (5).  Private Z____'s blatant disregard for Marine Corps policy concerning drug abuse indicates the need for separation in this case.  Private Z____'s is not capable of further military service.  

000114:	SJA review determined the case sufficient in law and fact.

000119:	GCMCA [Commanding General] 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 000126 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 was inequitable because it was based on one isolated incident in 17 months of service with no other adverse action.  I strongly believe that if I would of received a second chance, I would of not only learned from my mistake, but could of helped others avoid the same mistake.  By upgrading my discharge you will be giving me the opportunity to succeed outside the military.”  The applicant’s issue implies a permissive doctrine exists whereupon a service member is allowed one misdeed in order to learn a lesson.  The record clearly shows that the applicant fully understood the Marine Corps policy on illegal drug use when he enlisted.  In fact, the applicant entered the Marine Corps after submitting a waiver request due to prior use of illegal drugs (971205).  Additionally, the applicant was briefed on the “Marine Corps Policy concerning Illegal Use Of Drugs” and signed the statement of awareness on 971204.  The Board finds no merit in this issue.  Relief is denied.

The applicant’s second issue states:  “(VFW Issue) This office, acting as counsel, has reviewed the naval records of the above named applicant and respectfully submits them for consideration in accordance with the application for review of his naval record.  We ask in accordance with Department of Defense Directive Number 1332.28E.4 EQUITY In the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the DRB viewed in conjunction with the factors listed in this subparagraph and the regulation under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.  Areas of consideration include, but are not limited to:E4.3.1.12 RECORDS OF NONJUDICIAL PUNISHMENT.”  After careful review of the applicant’s service record the NDRB found no inequity in the discharge.  The Other Than Honorable Discharge accurately characterizes the applicant’s service.  The Board reviewed the applicant’s NJP and reviewed the correspondence from Commanding Officer, 3^rd Assault Amphibian Battalion, “ERROR ON NON JUDICIAL PUNISHMENT.”  The correspondence was sent to the applicant and advised him of an error in the NJP and provided the proper instructions to correct this matter.  The Board did not find this administrative error created an inequity in the applicant’s discharge.  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 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/A9217/A9235/A9223/A9221