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

Docket No. MD01-00914

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

 ex-Pvt, USMC
Docket No. MD01-00914

Applicant’s Request

The application for discharge review, received 010703, 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 designate a representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020118.  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 (discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I am currently a student at SHSU (Sam Houston State University) and wish my discharge might be upgraded to General in efforts to prosper and pursue all goals and ambitions in the business field of today’s society.  Thank You.  Sincerely M_ K. H_ (Applicant).

Submitted by DAV:

2.  The records reflect the FSM served in the United States Marine Corps from May 24, 1993 to May 20, 1994, with a narrative reason for separation as Misconduct - Drug Abuse.  This reflects an eleven-month period of active service with the FSM listing no specific issues, but the evidentiary record reflects well to average performance, to include the award of a Meritorious Mast.  Therefore the length and quality of that service must be considered, as the bulk of his service is believed to have been good service entitling him to an Honorable discharge.

In light of the Fem.’s request we ask that in the course of the discharge review, if it is determined that the policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable on a service wide bases to discharges of the type under consideration that full consideration be given to a change of the current discharge on the base of equity in accordance with SECNAVINST regulations.

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

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

Certificate of Appointment to Private First Class (Meritoriously) dtd 20 Aug 93
Certificate of Course Completion (Fiscal/Budget Technician Crs 1-94) dtd 19 Nov 93
Physical Fitness Test Certificate of perfect score dtd 20 Aug 93
Certificate of Meritorious Mast for period 9 Sep 93 to 1 Oct 93

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		921219 - 930523	COG

Period of Service Under Review:

Date of Enlistment:  930524		Date of Discharge:  940520

Length of Service (years, months, days):

	Active:    00  11  27
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  14			AFQT:  66

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (4)		Conduct:  4.2 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge, NDSM, MM

Days of Unauthorized Absence:  None

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:

921215:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

940211:	NAVDRUGLAB San Diego, CA, reported applicant’s urine sample, received 01FEB94, tested positive for THC - marijuana.

940302:	NJP for violation of UCMJ, Article 112a:  wrongful use of a controlled substance, to wit:  Marijuana
Awarded reduction to E-1, forfeiture of $200.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

940426:	CACC eval/comment:  Member has been found non-dependent by a medical officer.  Recommend initiate admin separation proceedings per current directives.  If not separated, begin Level I education immediately.

940406:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your non-judicial punishment for illegal use of drugs.

940406:	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.

940504:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was due to member tested positive which resulted in NJP action.  Commanding officer’s comments (verbatim):  "Private (Applicant)'s service record to date reflects above average performance outside of his drug violation, however, his lack of judgement and self-discipline are evidenced through his testing positive for drugs during a random urinalysis.  Private (Applicant)'s average PRO/CON marks in service are 4.5/4.2 after the NJP."

940517:	SJA review determined the case sufficient in law and fact.

940517:	GCMCA [CG, MCB, Camp Pendleton, CA] 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 940520 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).

Issue 1.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  The Board’s charter limits its review to a determination on the propriety and equity of the discharge.  In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable.  Relief denied.

Issue 2.  The applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The discharge was proper and equitable.  Relief denied.

He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

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.  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/A9221/A9217/A9201/A9439