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Docket No. MD02-00398

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

 ex-LCpl, USMC
Docket No. MD02-00398

Applicant’s Request

The application for discharge review, received 020220, requested that the characterization of service on the discharge be changed to honorable and that the narrative reason for discharge be changed to Secretarial Authority.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021022.  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 and narrative reason 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

1.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

2.  (Equity Issue) This former member further requests that his reason for discharge be amended to Secretarial Authority.

Documentation

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

Copy of DD Form 214
Letter from VFW, Department of Maine dated February 16, 1995
Ten pages from Applicant's service record
Copy of license from Federal Communications Commission dated October 7, 2001
Copy of unofficial transcript of grades from National Aviation Academy
Copy of certificate for Specialized Associates Degree in Aviation Maintenance Technology dated September 19, 2001
Copy of certificate for Airframe Technician Course dated September 19, 2001
Copy of certificate for Powerplant Technician Course dated March 16, 2001

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR		920902 - 921027	To report to active duty
	Active:   USMCR		921028 - 930428	RELACDU
	Inactive: USMCR		930429 - 940602	To report to active duty
	Active:   USMCR		940603 - 940929	RELACDU
	Inactive: USMCR		940930 - 941001	To report to active duty
	Active:   USMCR		941002 - 950217	RELACDU
	Inactive: USMCR		950218 - 950218	To report to active duty
	Active:   USMC		950219 - 950330	RELACDU

Period of Service Under Review:

Date of Enlistment:  950331		Date of Discharge:  970430

Length of Service (years, months, days):

	Active:    02  01  00
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  72

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (6)			Conduct:  4.5 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, MM, GCM, SSDR, AFSM

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:

970214:	NJP for violation of UCMJ, Article 112a:
Specification: Wrongfully used the controlled substance cocaine.
Awarded forfeiture of $598.00 per month for 2 months, restriction and extra duties for 45 days, reduction to LCpl.  Not appealed.

970218:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

970218:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

970227:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was based on the violation of Article 112a, as referenced by the NAVDRUGLAB msg R 111608Z Feb 97, positive urinalysis for cocaine. 

970307:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.  

970404:	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.

970416:	SJA review determined the case sufficient in law and fact.

970421:	GCMCA [Commanding General, 2d Marine Division, U.S. Marine Corps Forces, Atlantic] 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 970430 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).

Issue 1 and 2.  The Board has no authority to upgrade a discharge for the 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.  There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  The Applicant’s performance prior to the drug abuse does not mitigate his use of illegal drugs.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  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.  Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is drug free, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Board determined that the Applicant’s evidence of positive post-service activities did not mitigate the conduct for which he was discharged.  Relief not warranted.

The Applicant 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.  Representation at a personal appearance hearing is recommended but not required. 

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 “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/A9439/