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

 ex-PVT, USMC
Docket No. MD01-00483

Applicant’s Request

The application for discharge review, received 010307, 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 010822.  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.  Attached are letters stating my conduct and character after receiving and other than honorable discharge due to misconduct.  My conduct, stated in section 28 of DD form 214 reason for separation, was based on one isolated incident in 9 months of service.  In addition, the incident of drug use was not conducted on a military reservation.  Upon returning, I had admitted to my misconduct off base, only through the integrity as a marine.  My conduct in the past was very much inappropriate; however, I do not want to be discriminated from an incident in my past, but to redeem myself from a status of misconduct with good conduct for future endeavors and goals in life.

Documentation

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

Character Reference Letters (2)
Employment Reference Letter
Copies of DD Form 214 (2)
Copy of Police Record Check Request
Resume (2pgs)
Copy of Training Certificate (Civil Service)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		960404 - 960422	COG

Period of Service Under Review:

Date of Enlistment:  960423		Date of Discharge:  970206

Length of Service (years, months, days):

	Active:    00  09  14		Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  50

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.3 (1)			Conduct:  2.2 (1)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman Badge, GCM 

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:

960328:	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.

961022:	Declared a deserter and dropped from the rolls of org by RUC 31407.

961121:	Counseled for deficiencies in performance and conduct.  [Concerning my self admittance of a controlled substance.]  Advised processing for administrative separation for cause mandatory.  Applicant chose not to make a statement.

961120:	Clinical Psychologist, R.E O_____, Mental Health Clinic diagnosis: Axis I: Marijuana Abuse (Pt's self admission), Axis II: Personality Disorder not Otherwise specified with Borderline/Antisocial Features, Axis III: Bilateral Feet Stress Fracture.

961213:	Statement regarding retention indicates PVT S____ was transferred to MAT Company from Company A, Infantry Training Battalion on 960911 for stress fracture and 30 days light duty.  Shortly thereafter, PVT S_____ was UA for 30 days before returning to military control.  SNM was read his rights under article 31, and he openly admitted to smoking marijuana during his UA period.  PVT S___ submitted to a urine test, which results are pending.  SNM will do what ever it takes to be discharged, by his own admission, and the basis of his mental evaluation by Dr O____ stating in axis (1) self admit to marijuana abuse.

961216:	Substance Abuse Report Evaluation indicates drug abuse, which was confirmed by a medical officer.

961216:	Counseled for deficiencies in performance and conduct.  [Concerning your NJP, you were advised that this type of action starting out early in you Marine Corps career may cause adverse reaction regarding retention]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961216:	NJP for violation of UCMJ, Article 86: UA (AWOL) from 2100, 960922 to 1230, 961106 [45days/S], from MATCo. SOI. MCB, CamLej.
Awarded forfeiture of $437.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-1.  Not appealed.

961217:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

961217:	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.

970108:	Commanding Officer, Headquarter and Support Battalion recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your self incrimination for use of an illegal substance.  

970114:	Commanding Officer, School of Infantry concurring with the   recommendation of the Battalion Commander to discharge PVT S____ under other than honorable conditions by reason of misconduct due to drug abuse.

970129:	SJA review determined the case sufficient in law and fact.

970204:	GCMCA [Commander, Marine Corps Base, Camp Lejeune] authorized 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 970206 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 states his discharge was based on one incident in 9 months of service.  The applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  Not only did the applicant use illegal drugs, but he also received nonjudicial punishment for desertion.  His Commanding Officer noted the applicant “would do just about anything to get out of the Marine Corps.”  The applicant was responsible for his actions and must accept the consequences of his misdeeds. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.   In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  His service is equitably characterized as being performed under other than honorable conditions.  Relief is not warranted.

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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  The applicant's efforts need to be more encompassing than those provided.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  

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.  Representation at a personal hearing is not mandatory, but is strongly 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 86, unauthorized absence for more than 30 days; and 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