Author: CAP
Last saved by: Department of the Navy
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Docket No. MD02-00701

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

 ex-LCpl, USMC
Docket No. MD02-00701

Applicant’s Request

The application for discharge review, received 020418, 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.  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 030131.  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

1.  My discharge was undeserved because on the "Recommendation For Administrative Discharge" MCABW 1900/3, my commanding officer recommended "RETENTION".

2.  My record of NJPs indicates only this isolated offense.

3.  My final diagnosis for drug abuse was not considered by the Commanding General of 3d MAW because the information was not included with the MCABW 1900/3.

4.  My final diagnosis was "isolated, unknowing use of Methamphetamine, no evidence of chronic abuse or dependence".

5.  My average conduct and proficiency marks were above average.

6.  I received letters of recommendation.

7.  I had a prior Honorable Discharge.

8.  I have been a good citizen since discharge.

9.  I was so close to finishing my tour that it was unfair to give me a bad discharge.

10.  Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in her request that she be given the opportunity to change her (Under other than Honorable Conditions) Discharge to a Honorable Discharge.

The (FSM) joined the United States Marine Corp on November 05, 1990 until September 10, 1997 where she served with one judicial UCMJ punishment for drug use.  The reason the (FSM) feels she was treated unfairly is when her husband appeared in front of her hearing and admitted that the drugs were accidentally placed by him in a beverage that the (FSM) was drinking without her prior knowledge.  The (FSM) also had recommendations from medical authorities attesting to her low levels of (one) time usage and recommended she be returned to full duty.  The (FSM) states and had submitted copies and which are enclosed in her Company Commanders' recommendation that she also should be returned to full duty status and be listed as a first time drug user.  It is also interesting to note that the service member was not reduced in rank for that incident and she was prepared to fully complete her term of military service.

The (FSM) states that she is extremely sorry for that incident and now is making amends to her community by volunteering as a board member of the American Red Cross of Eastern Oregon and had a long work history as an employee of The Pioneer National Bank of Oregon.  The(FSM) had not used drugs since that above incident and is no longer married to her spouse who accidentally drugged her soft drink beverage that led to her being separated and Discharged (Under Other Than Honorable Conditions).

The (FSM) desires now to first request an up-grade in her military separation Discharge (Under Other Than Honorable Conditions) to an Honorable Discharge.

The (FSM) seeks now to up-grade her discharge also in an effort to receive Educational benefits and entitlements for her military service and to re-establish her life in hopes for better secure job opportunities and a secure and better future for her and her family.  The (FSM) now respectfully requests an equitable standard be applied as well as equity in treatment in seeking the boards' forgiveness for her alleged misconduct behaviors while a member of the United States Naval Services.  The (FSM) sincerely hopes that by respectfully requesting and being granted an Honorable Discharge from the Navy, she feels she will continue to feel that an Honorable Discharge is a matter of Supreme Honor and Respect she will honor and cherish throughout her lifetime.  The (FSM) also states she had always tried to achieve Honor and Respect during her entire military duty in the Naval Service.  We again respectfully request that the (FSM) be given complete and duly consideration by the board.

We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to correct the (Under Other Than Honorable Conditions) character of her discharge to an Honorable Discharge.

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.

11. My record shows I was not counseled for a positive urinalysis as in accordance with IRAM 4006 paragraph 4-50.

12. My record shows I was not counseled for Administrative Separation as required by IRAM 4006 paragraph 4-52.

13. My record of promotion showed I was generally a good service member.

Documentation

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

Applicant's DD Form 214
Thirty-five pages from Applicant's service record
Job/character reference from Senior Vice President, Pioneer Bank dated October 31, 2001
Job/character reference from President and CEO, Pioneer Bank dated January 2, 2002
Job/character reference from Deposit Services, AVP, Pioneer Bank dated January 2, 2002
Job/character reference from Executive Assistant, Pioneer Bank dated January 2, 2002
Letter of reserve enlistment recommendation from Command Master Chief, NMCB 18. undated
Letter of recommendation for affiliation into the Naval Reserves dated January 3, 2002
Certification of Appreciation dated July 14, 2001
Certification of Appreciation dated 2001
Statement from Applicant, undated
Applicant's statement dated January 2, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		891211 - 901104	COG
	Active:   USMC		901105 - 950125	HON

Period of Service Under Review:

Date of Enlistment:  950126		Date of Discharge:  970910

Length of Service (years, months, days):

	Active:    02  07  15
	Inactive:  None

Age at Entry:  22			Years Contracted:  3

Education Level:  12			AFQT:  52

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages:  All enlisted performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, Certificate of Commendation (3), Letter of Appreciation (3), Certificate of Recognition, GCM (2)

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:

950126:	Applicant reenlisted for 3 years.

970612:	NJP for violation of UCMJ, Article 112a.
Specification: Wrongfully used a methamphetamine.
Awarded forfeiture of $757.00 per month for 2 months, restriction for 60 days, reduction to Cpl.  Reduction and restriction of 45 days suspended for 6 months.  Not appealed.

970617:	Medical evaluation for drug abuse found the Applicant not to be drug dependent or drug abusive.  No treatment required at this time.  Recommend process for administrative separation per ALMAR 246/92 for alleged illegal drug use.  

970701:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

970701:	Commanding Officer recommended retention by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the recent positive urinalysis.  

970710:	Applicant advised of her 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.

970805:	SJA review determined the case sufficient in law and fact.

970808:	GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 970910 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 1-2, 4-7, 9-10, and 13.  The Applicant states her discharge was based on one isolated incident with no other infractions.  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.  The Applicant’s prior honorable service, recommendation for retention from the Commanding Officer, diagnosis from a substance abuse counselor, and overall service record do not mitigate her misconduct.  The Board was not persuaded that the Applicant unknowingly ingested an illegal drug.  Relief denied.

Issues 3, 11-12.  The Applicant’s issues are without merit.  A Staff Judge Advocate review determined the discharge proceedings sufficient in law and fact.  The Board found no impropriety or inequity in the Applicant’s processing for administrative separation.  Relief denied.

Issue 8.  The Applicant’s discharge characterization accurately reflects her service to her country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity 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, an employment record, documentation of community service, certification of non-involvement with civil authorities and evidence of a substance free lifestyle, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which she was discharged.  Relief denied.

She is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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 “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

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/A9405/A9217/A9223/A9235/A9317/A9201/9203/A9219/A9221/
A9439