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Docket No. MD04-00165

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

ex-PVT, USMC
Docket No. MD04-00165

Applicant’s Request

The application for discharge review was received on 20031104.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record review.  The Applicant did not list a representative on her DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628.  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:

Issue 1:  “I was informed upon my release that my discharge would be upgraded after six (6) months, therefore, I am now requesting that my discharge be upgraded.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None			HON
	Inactive: USMCR (J)		951019 - 960908	COG

Period of Service Under Review:

Date of Enlistment:  960909		Date of Discharge:  981217

Length of Service (years, months, days):

	Active:    02  03  09
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  43

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (5)			Conduct:  4.2 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  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:

950918:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver was granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

970925:	Counseled for deficiencies in performance and conduct.  [Failing the BST test twice.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980520:	NAVDRUGLAB Jacksonville, FL reported Applicant’s urine sample, received 980513, tested positive for THC.

981020:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a.
	Specification:  did no or about 9 April 1998 and 8 May 1998, wrongfully use marijuana.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Forf of 2/3 pay for 1 month, reduced to E-1 and 60 days restriction.
	CA action 981021:  Sentence approved and ordered executed.

981117:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Naval Drug Laboratory Jacksonville, Florida message 202213Z of May 98.

981117:	Applicant advised of rights and having elected 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.

981117:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the Applicant’s “in-service drug use, as evidenced by Naval Drug Laboratory Jacksonville, Florida message 202213Z of May 98. 

981124:	SACO/DACO evaluation on microfiche is unreadable.

981203:	GCMCA [Commanding General, Marine Corps Air Station, Cherry Point] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

981223:	SJA review determined the case sufficient in law and fact.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981217 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:  The Applicant’s discharge characterization accurately reflects her service to our 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 occurred during the Applicant’s enlistment.  The Applicant states she was told after six months she could have her discharge upgraded.  There is no law or regulation that authorizes a discharge to be automatically upgraded after six months.  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 presented no evidence of post-service conduct to mitigate the offense for which she was discharged.  She is reminded 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.  Relief denied.

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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