Author: CAP
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Docket No. MD02-01308

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

 ex-Pvt, USMC
Docket No. MD02-01308

Applicant’s Request

The application for discharge review, received 020910, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The Applicant requested a personal appearance hearing discharge review before a traveling panel closest to Bakersfield, CA.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing and also advised that the NDRB does not travel; all hearings are held in the Washington, D.C. area.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 030612.  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.  Respectfully request my character of service changed from “Under other than Honorable” to “Honorable or General under Honorable.”

I loved being in the Marine Corps and I made a mistake at a concert that I attended.  I have regretted that date ever since.

Request to have my discharge upgraded.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		990511 - 991114	COG

Period of Service Under Review:

Date of Enlistment:  991115		Date of Discharge:  010511

Length of Service (years, months, days):

	Active:    01  05  27 (Doesn’t exclude confinement time.)
	Inactive:  None

Age at Entry:  18			Years Contracted:  5

Education Level:  12			AFQT:  50

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.5 (5)			Conduct:  3.7 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  Marksman Rifle Badge

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:

001025:	Applicant consented to urinalysis testing.

001106:	NAVDRUGLAB San Diego, reported Applicant’s urine sample, received 001027, tested positive for THC - marijuana.

001130:	NCIS report contained in Applicant’s service record.

010215:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a:  Wrongful use, possession, etc., of controlled substances.
	Specification:  During October 2000, Applicant at unknown locations, and on at least 2 separate occasions, wrongfully used marijuana (THC), a controlled substance.
	Finding:  to Charge I and the specification thereunder - guilty.
	Sentence:  Confinement for 21 days and reduced to E-1.
	CA action 010215:  Sentence approved and ordered executed.

010321:	SACC evaluation:  Applicant does not meet DSM IV criteria for drug abuse/dependency.  Recommend admin separation.

010409:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis test results for THC.

010409:	Applicant requested retention in lieu of discharge action.

010410:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to make a statement and the right to obtain copies of the documents used to support the basis for the separation.

010417:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim):  “Private C_ (Applicant) was thoroughly counseled prior to his entry into the Untied States Marine Corps that illegal drugs and military service are absolutely incompatible.  The Department of Defense and U.S. Marine Corps leadership feel so strongly about the seriousness of illegal drug use that this is one of the few offenses that require a waiver for entry into our service as well as a counseling statement acknowledging the consequences for violating Article 112a of the UCMJ: wrongful use of a controlled substance.  Prior to taking his enlistment oath he voluntarily signed this agreement which stated that he would adhere to this policy or he would be discharged from the U.S. Marine Corps under other than honorable conditions.  Private C_ (Applicant) cannot be trusted to honor his core values and I highly recommend that he should be separated under other than honorable conditions for illegal substance abuse.”

010427:	SJA review determined the case sufficient in law and fact.

010502:	GCMCA [CG, 3D MAW] 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 010511 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.  The discharge was proper and equitable.  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.  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.
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