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Docket No. MD02-00894

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

 ex-PFC, USMC
Docket No. MD02-00894

Applicant’s Request

The application for discharge review, received 020626, 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 030311.  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.

ART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Thank you for giving me the opportunity to upgrade my discharge.  I had 7 years of great service to the Marine Corp.  Everyone makes mistakes.  Unfortunately I made a big one.  I planned to make the Marine Corp my life.  I got mixed up with the wrong crowd and made mistakes, which cost me.  I was rehabilitated.  I would like to say that I served my country under Honorable Conditions.  Thank you for you time.

Documentation

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

Applicant's DD Form 214
Letter to Applicant from Continental Airlines dated March 28, 2001
Letter from Houston Aviation Admission Council, undated
Department of Transportation - Federal Aviation Administration card issued March 10, 2001
Certificate of recognition dated May 24, 2000
Certificate of graduation dated February 23, 2001

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		890329 - 891113	COG
	Active:   USMC		891114 - 941027	HON

Period of Service Under Review:

Date of Enlistment:  941028		Date of Discharge:  970228

Length of Service (years, months, days):

	Active:    02  04  01
	Inactive:  None

Age at Entry:  23			Years Contracted:  3

Education Level:  12			AFQT:  65

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (6)			Conduct:  3.9 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  Letter of Appreciation, NDSM, SSDR with 1*, SASM, JMU, Certificate of Commendation, GCM with 1*, NUC, KLM

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:

941028:	Applicant reenlisted for 3 years.

960326:	NAVDRUGLAB, Great Lakes, IL, reported Applicant’s urine sample, received 960318, tested positive for cocaine.

960327:	Drug and Alcohol Abuse Report: Cocaine possession and abuse, ashore off duty.  Consentual urinalysis 960312.  Commanding Officer recommended Level II treatment.  Comments: Block 15 was marked not determined on initial report. SNM has had initial evaluation with Drug and Alcohol Program Advisor, results have not been determined at this time.  SNM will receive nonjudicial punishment and receive federally mandated treatment prior to discharge IAW MSG # R170305Z Oct 95, R092030Z Feb 95, SNM will be processed for discharge IAW ForO 5300.1, SECNAVINST 5300.28B, MCO 5300.12.  SNM was identified as a positive Cocaine user on a consent urinalysis 13 March 1996 MSG #R260809Z MAR 96, Local Batch #6046, Lab Acc. # 316911, Spec. No. 01, tested at Navy Drug Lab, Great Lakes, IL.

960328:	NJP for violation of UCMJ, Article 112a:
Specification: Possess a controlled substance as confirmed by NAVDRUGLAB Great Lakes message 260809Z Mar 96, to wit: cocaine.
Violation of UCMJ, Article 92:
Specification: Failed to comply with TAD orders to report to Millington, TN on 0730, 960314.
Awarded forfeiture of $500.00 per month for 2 months, restriction and extra duties for 45 days, reduction to LCpl.  Forfeiture for 2 months suspended for 6 months.  Not appealed.

961211:	NAVDRUGLAB, Great Lakes, IL, reported Applicant’s urine sample, received 961122, tested positive for cocaine.

961214:	NJP for violation of UCMJ, Article 112a:
Specification: Use a controlled substance as confirmed by NAVDRUGLAB Great Lakes, IL message 110831Z Dec 96, to wit: cocaine.
Violation of UCMJ, Article 134:
Specification: Unfit for duty with a BAC of .138.
Violation of UCMJ, Article 86:
Specification: Unauthorized absence 0730-0930, 961214.
Awarded forfeiture of $490.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

970103:	Counseled regarding deficiencies, specifically, the illegal drug involvement.  Usage of a controlled substance, identified in a consent urinalysis conducted on 13 March 1996, and confirmed by NAVDRUGLAB Great Lakes, IL, MSG R260809Z Mar96.  Local Batch No 6046, Lab Acc. No 316911 Spec No 01, tested positive by IA and confirmed by GC/MS for (Cocaine) drug use.  Also on 14 March 1996, 0730 on this date Applicant failed to comply with TAD orders to report to Millington, TN.  Applicant advised that processing for administrative separation for misconduct is mandatory per MCO P1900.16.

970103:	Medical evaluation for alcohol dependency and drug abuse found the Applicant to be alcohol dependent and a drug abuser.  Not eligible for treatment since Applicant had completed Level III rehabilitation within the last 12 months.

970207:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

970207:	Applicant advised of his rights and having consulted 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.

970207:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was drug abuse (cocaine) as evidenced by NAVDRUGLAB Great Lakes message 260809Z Mar 96 and NAVDRUGLAB Great Lakes message 110831Z Dec 96. 

970225:	SJA review determined the case sufficient in law and fact.

970225:	GCMCA [Commander, Marine Forces Reserve] 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 970228 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.  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.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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 of a substance free lifestyle, are examples of verifiable documentation 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 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 “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/A9219/A9217/A9439/A9221