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Docket No. MD04-00599

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

ex-PFC, USMCR
Docket No. MD04-00599

Applicant’s Request

The application for discharge review was received on 20040225.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20041001.  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-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To Whom It May Concern,

I would like to take this opportunity to explain a little bit about myself and why I am requesting a review of my discharge.

While in the U.S. Marine Corps Reserves I made a decision that I regret to this day. While at a party during a non-drill weekend I smoked marijuana. I was subsequently discharged under other than honorable conditions.

While in the reserves and after being discharged I was working in the corporate world as a manager but was never completely satisfied with my profession. I discussed this with my wife and other family members and in January 1998 enrolled in the Allentown Police Academy. I continued working full time while attending night time classes at the Academy and in October 1998 I graduated first in my class with a GPA of 97%.

I began testing with local police departments and was hired by the Chalfont Borough Police Department in May 1999. After two and a half years of service with Chalfont Police I tested with the Montgomery Township Police Department and proceeded through an extensive hiring process, however, I was not offered employment with them.

Shortly thereafter I was approached by the New Britain Township Police Department and received a conditional offer of employment. After I accepted their offer, the Chief of Police contacted Montgomery Township Police and obtained copies of my background investigation which had just been completed by Montgomery Township. These were forwarded to the Township Board of Supervisors, and after several oral interviews, I was hired in March 2002. I plan to be with this department until I am eligible for retirement.

During my four and one half years of service as a police officer I have received numerous thank you letters from citizens, obtained exceptional reviews from my superiors, and been awarded a commendation for successfully resuscitating a citizen who suffered a cardiac arrest.

I have also proven my desire to promote highway safety and have become proficient in my investigative skills.

My current and former employers knew about my discharge characterization prior to hiring me and I am thankful they allowed me the opportunity to show that a wrong decision ten years ago was a one-time occurrence.

I am requesting a change in my discharge characterization for two reasons.

The first reason is personal. I perform my duties as a sworn police officer with professionalism and a great deal of integrity, but this occurrence reflects negatively upon myself. Although I will always know that I did not serve the Marine Corps to my fullest ability I would like to have a favorable discharge characterization indicated in my military records.

The second reason is professional. I will soon be able to participate in promotional examinations. The township board of supervisors has indicated that to be considered for promotion I must have a favorable discharge characterization.

I have attached numerous documents that I feel show that although I made a bad decision years ago, it was a one time occurrence and I have become a well-rounded law enforcement officer who is dedicated to serving the community.

I appreciate your time in this matter and thank you in advance.

Respectfully,
J_ C_ (Applicant)”

Documentation

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

Applicant’s DD Form 214 for completion of required active service period
Letter from Applicant, (2 pages) not dtd
Twenty-six pages from Applicant’s service record
Quest Diagnostics urinalysis laboratory report, dated April 9, 1999
American Medical Laboratories, Inc report, dated February 19, 2002
Applicant’s background interview sheet, dated April 16, 2001
Applicant’s background interview sheet, (2 pages) dated April 20, 2001
Applicant’s background interview sheet, (5 pages) dated April 23, 2001 
Applicant’s background interview sheet, dated May 2, 2001
Applicant’s background interview sheet, (2 pages) dated May 7, 2001 
Applicant’s background interview sheet, dated May 8, 2001
Applicant’s background interview sheet, dated May 9, 2001
Applicant’s background interview sheet, (2 pages) dated May 10, 2001
Applicant’s background interview sheet, dated May 15, 2001
Applicant’s background interview sheet, (2 pages) dated May 17, 2001 
Applicant’s background interview sheet, dated May 23, 2001
Character reference, dated April 17, 2001
Job/character reference, dated April 18, 2001
Job/character reference, dated April 23, 2001
Job/character reference, dated April 24, 2001
Thank you letter to Applicant, dated January 4, 2000
Handwritten letter, dated April 20, 2000
Thank you note, dated April 30, 2000
Thank you note, dated May 10, 2000
Thank you note, dated June 7, 2000
Thank you note, dated July 15, 2002
Letter of appreciation, dated August 14, 2002
Thank you note, undated
Performance appraisal, dated December 13, 2000
Statistical analysis on Applicant’s performance during training course, dated October 28, 1998
Certificate of completion, dated May 19, 2000
Certificate of attendance, dated April 9 and 10, 2001
Certificate for breath test operator, dated March 5, 2002
Certificate of completion, dated March 22, 2002
Certificate of completion, dated March 28, 2002
Certificate of attendance and completion, dated April 8 - April 10, 2002
Certificate of attendance, dated September 17 - 19. 2002
Certificate of completion, dated February 3 - 5, 2003
Certificate of completion, dated April 3, 2003
Certificate of training, dated April 3, 2003
Certificate of completion, dated April 4, 2003
Certificate of attainment, dated August 26 - August 28, 2003
Certificate of completion, dated January 27 - 28, 2004
Official commendation for actions on July 29, 2000
Job reference, dated March 19, 2004

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  910215		Date of Discharge:  930726

Length of Service (years, months, days):

	Active:    00  09  03
	Inactive:  01  08  10

Age at Entry:  26			Years Contracted:  8

Education Level:  12			AFQT:  84

Highest Rank:  LCPL		MOS:  2531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (6)			Conduct:  3.7 (6)

Military Decorations:  None

Unit/Campaign/Service Awards: RSB, NDSM

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Drug abuse (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

910120:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

910205:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver was granted. 

910917:	Counseled for deficiencies in performance and conduct, specifically, “low proficiency mark, for failure to assimilate technical school material and subsequent academic failure of assigned training.”  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930222:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 930212, tested positive for THC.

930502:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully use THC on 930206.
Awarded reduction to E-2.  Not appealed.

930508:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

930518:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

930608:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was positive urinalysis for THC.  

930714:	SJA review determined the case sufficient in law and fact.

930723:	GCMCA,CG, Marine Reserve Force, New Orleans, LA, 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 19930726 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 states that his discharge was the result of “a bad decision years ago, it was a one time occurrence”. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s enlistment contract documents admission of pre-service marijuana experimentation. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

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.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

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.