Author: CAP
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Docket No. MD03-00237

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

 ex-PFC, USMC
Docket No. MD03-00237

Applicant’s Request

The application for discharge review, received 20021121, 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 20031010.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 stated

Applicant’s issues, as stated on the application:

“1.  My discharge was based on a single black mark in my service record.  In 34 months of service I had an outstanding record of conduct.

2.  At time of discharge, I had six months until E.A.S. I had planned on re-enlisting and possibly making a career out of it.  Being an amtracker was the most enjoyable job I’ve ever had.

3.  At the time of discharge I was told that if there were no felony convictions on my record.  After three years, the discharge would be upgraded to Honorable automatically.

4.  Commandant removed zero tolerance policy, but had a grandfather clause for rank E-3 and below and if it was your only offense which in my case was.

5.  There were many discrepancies in my case.  We tested a few weeks before going overseas.  The results were in before we left and yet I still went.  Instead of rotating back to the states with company I was left to complete paperwork on Okinawa.  Had I have known about this clause I would have definitely filed an appeal so I could have finished out my last six months.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		910823 - 920810	COG

Period of Service Under Review:

Date of Enlistment:  920811		Date of Discharge:  951201

Length of Service (years, months, days):

	Active:    03  03  21
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  71

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (9)			Conduct:  4.3 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, 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:

950502:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 950426, tested positive for THC.

950530:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully used THC (marijuana) between 950416 and 950419.
Awarded forfeiture of $478.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

950621:	Medical evaluation for alcohol/drug abuse found the Applicant to be an alcohol/drug abuser, not dependent.  

950927:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

950928:	Applicant advised of his 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.

950928:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was Applicant’s misconduct due to drug abuse as evidenced by his positive urinalysis for THC.  The Applicant’s illegal drug use represents a flouting of Marine Corps policy on drug abuse and brings discredit upon the service.  By his actions he has demonstrated that he has no potential for further military service.  

951027:	GCMCA [Commanding General, 3d Marine Division] 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 19951201 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, 5.  There is credible evidence in the record that the Applicant used illegal drugs.  Despite the positive aspects of the Applicant’s service, drug abuse warranted processing for separation, normally under other than honorable conditions.  There is no removal of a “zero tolerance policy” concerning drug abuse or a “grandfather clause” in effect now or at the time of the Applicant’s discharge.  The Board found no impropriety or inequity in the timing of the Applicant’s last deployment in relation to his pending administrative separation.  Relief denied.

Issue 3.  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 18 Aug 95 to 30 Jan 97.

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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