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

 ex-PFC, USMC
Docket No. MD02-00165

Applicant’s Request

The application for discharge review, received 011210, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 030519.  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, as submitted

Issue 1:  (Equity Issue)  This former member requests that the Board apply provisions of SECNAVINST 5420.174C, paragraph 2.24 and 9.3, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation

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

Copy of Applicant's DD Form 214 (2 copies)
List of urinalyses undergone by Applicant with results (handwritten) from MSgt
    L_ W. C_, USMC undated
Special Recognition, High School Equivalency Diploma, New York State Education
    Department dated 010803
Training Certificate, Networking/Computer Technician Course dated 010613
Training Certificate, Information Management/Office Technology Course dated
    010613
Special Recognition Award, Networking/Computer Technician for school year
    2000-01 from DCMO BOCES undated
Notification of Deputy Sheriff Examination Results from Chenango County dated
    030218
Mortgage Acceptance Notification from CUC Mortgage Corporation dated 021118
Employee Pay Record from Board of Cooperative Educational Services, Delaware,
    Chenango, Madison, and Otsego Counties for salary payment on 030516
Character Reference from C_ L. C_, DCMO BOCES dated 030505
Character Reference from J_ H_, DCMO BOCES dated 030511
Character Reference from B_ L. B_ dated 030512

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960913 - 961015	COG

Period of Service Under Review:

Date of Enlistment:  961016		Date of Discharge:  990728

Length of Service (years, months, days):

	Active:    02  09  013
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  11			AFQT:  34

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (7)			Conduct:  4.3 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, SSDR

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:

960912:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

990107:	Applicant apprehended by customs for possession of valium.  Applicant turned over to Shore Patrol for further disposition.  NCIS was notified and arrived to conduct investigation.  NCIS departed.  Applicant was transferred to MCRD for further disposition.

990202:	Applicant not recommended for promotion to corporal (E-4) for January, February, and March due to lack of maturity.

990212:	Counseled for deficiencies in performance and conduct  (possession of a controlled substance, valium, while crossing the international border between Tijuana, Mexico and San Diego, CA, United States).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990217:	NJP for violation of UCMJ Article 112a:
Specification: Wrongfully possess 78 tablets of valium at 1225 on 990107.
Awarded forfeiture of $250.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Forfeiture of $200.00 for 2 months, restriction and extra duty for 15 days suspended for 4 months.  Not appealed.

990406:	Applicant refused medical officer's evaluation for addictions prior to discharge.

990413:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990413:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

990426:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the documented possession of an illegal substance.

990518:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

990726:	SJA review determined the case sufficient in law and fact.

990726:	GCMCA (Commanding General, 1st Force Service Support Group) directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000126:	NDRB documentary record review Docket Number MD00-00575 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 990728 under other than honorable conditions for misconduct due to drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issues 1:  The Applicant contends, through counsel, that his post-service conduct, to include continuing education, professional pursuits in law enforcement, and community involvement, warrants reconsideration of his characterization of service.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  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.  The Board did consider the post-service documentation provided by the Applicant as well as the additional post-service accomplishments revealed during his testimony and does acknowledge the Applicant's positive accomplishments and service to his community.  However, the evidence provided by the Applicant to the Board was deemed insufficient to warrant a recharac-terization of his discharge to honorable.  Relief on the basis of post-service conduct is therefore denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until Present. 

B.  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.  

C.  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.

D.  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