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

ex-PFC, USMC
Docket No. MD04-00716

Applicant’s Request

The application for discharge review was received on 20040324.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041008.  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 should be upgraded because of actions I have taken to improve myself and I believe that I have suffered enough repricution for the incident on which I was discharged.”

Documentation

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

Letter from Applicant

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		921130 - 930201	COG

Period of Service Under Review:

Date of Enlistment:  930202		Date of Discharge:  951222

Length of Service (years, months, days):

	Active:    02  10  21
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  56

Highest Rank:  LCpl			MOS:  3361 

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (10)			Conduct:  3.9 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, OR, Rifle Marksman Badge, LOA

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:

921125:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

921130:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver granted.  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

940322:	Counseled for deficiencies in performance and conduct.  [Your inability to refrain from consuming excessive amounts of alcohol prior to coming on duty.  On 940313, you arrived to work at 0730 vice 0630 with a strong odor of alcohol on your breath and in an intoxicated state.  This rendered you incapable of performing your duties.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940728:	Counseled on alcohol rehabilitation requirements.  [I was interviewed by a substance abuse counselor on 940425 and referred to Level III treatment.  I successfully completed Level III treatment on 940722.  I was assigned to a mandatory (1) year aftercare program on 940722.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940818:	Counseled for deficiencies in performance and conduct.  [Failure to comply with my level III aftercare requirements, specifically, my continued use of alcohol.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950802:	NAVDRUGLAB [San Diego, CA], reported Applicant’s urine sample, received 950728, tested positive for amphetamine/methamphetamine.

950922:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a.
	Specification: Did, at an unknown location, on or about or between 950716 and 950721 use amphetamine/methamphetamine.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Forfeiture of $638.00 pay per month for 1 month, reduced to E-2, confinement for 30 days.
	CA action (undated):  Sentence approved and ordered executed.
	
951006:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

951006:	Applicant advised of rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

951103:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your recent Summary Court-Martial evidencing your drug abuse.

951207:	Medical evaluation indicates alcohol dependence not in remission/poly drug abuse.

951218:	SJA review determined the case sufficient in law and fact.

951219:	GCMCA [Commanding General, 1st MARDIV (Rein)] 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 19951222 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.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety occurred 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 may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.  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