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USMC | DRB | 2000_Marine | MD00-00142
Original file (MD00-00142.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD00-00142

Applicant’s Request
The application for discharge review, received 991105, 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 000720. 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-Drug abuse (with admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. In the US Marine Corps I tested positive for marijuana use. When I was in the service I successfully completed basic training and my infantry training school at Camp Pendleton, California this time I had no other problems and performed all my duties well and as required. Since I left the marines I have been a good citizen and good employee. The three attached document are evidence of this fact. I request that my military records also reflect my good character with a good character discharge rating.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Employment Reference Letter
Character Reference Letters (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                880218 - 880221  COG

 Period of Service Under Review :
Date of Enlistment: 880222               Date of Discharge: 881202

 Length of Service (years, months, days):

         Active: 00 09 11
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 14                        AFQT: 92

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.2                  Conduct: 2.7

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

880216:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
880715:  NAVDRUGLAB [SAN DIEGO, CA], reported applicant’s urine sample, received 880629, tested positive for [THC].

880809:  NJP for violation of UCMJ, Article 112a: Wrongfully use THC on or about 880620.
 Awarded forfeiture of $300.00 per month for 2 months, restriction for 30 days, reduction to E-1. Not appealed.
880929:  Counseled for deficiencies in performance and conduct. [Illegal drug involvement; specifically, usage of THC identified through urinalysis testing NAVDRUGLAB San Diego, CA Msg 152025Z Jul 88. On 880805 I was interviewed by the substance abuse counselor with follow up corrective action, place in the US Program on 880810.

881017:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse.
881017:  Applicant advised of his rights and having elected 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.

881101:  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 drug abuse for which Private D_ received nonjudicial punishment on 880803 for wrongful use of THC.

881117:  SJA review determined the case sufficient in law and fact.

881118:  GCMCA [Commanding General] 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 881202 under Other Than Honorable conditions for misconduct due to Drug abuse (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

 In reviewing the applicant’s single issue, the Board determined this issue is without merit. The applicant claims after completing training, he performed all duties well and as required. He states he is now a good citizen and employee. The applicant has provided limited documentation that shows he is making significant attempts at establishing a reputation of good character and conduct, but his efforts are insufficient to warrant an upgrade to his discharge at this time. His reference letters show he is employed and attending church. There is no evidence to show he is or has been drug free since his discharge or does not have a criminal record with civilian authorities. Additionally, there is no evidence of community service to indicate he is attempting to make restitution for his misconduct. Therefore, relief is denied.

The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The applicant provided one letter of recommendation from his employer and two character reference letters as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for relief based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received at the NDRB within 15 years from the date of discharge. Legal representation 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 P1900.16C), Change 4, effective 29 Jul 87 until 26 Jun 89.

 B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article [ e.g., Article 112a, Wrongfully use THC].
C. 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.

D. 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.

E. 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      


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