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USMC | DRB | 2000_Marine | MD00-00794
Original file (MD00-00794.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD00-00794

Applicant’s Request
The application for discharge review, received 000607, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing discharge review closest to Clarksville, TN. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington, DC Area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001214. 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 (authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I want the character of service separation code, reentry code and narrative reason for separation changed to reflect honorable service. I abused alcohol and marijuana during military service. I never was "caught" abusing drugs. I realized I had a problem and sought help. I was unaware of the zero tolerance regulation. I attribute the onset of the drug and alcohol abuse to immaturity, peer pressure and social pressure. Personal problems contributed to the bad discharge. Had I realized the gravity of the infraction, I would have sought covert help. I have had only minor offenses since discharge. It is unfair for me to continue to suffer the effects of the bad discharge.

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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                890909 - 900205  COG

 Period of Service Under Review :
Date of Enlistment: 900206               Date of Discharge: 930610

 Length of Service (years, months, days):

         Active: 03 04 04
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 80

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.41 (10)            Conduct: 4.4(10)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Sharpshooter Badge, NDSM, SDDR, SASM (3 RD ), MUC, NUC, GCM,

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) [or] (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.5.

 Chronological Listing of Significant Service Events :

890908:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

900806:  Counseled for deficiencies in performance and conduct. [You have failed to conform to good order and discipline as established by the UCMJ, This failure to conform has resulted in you being UA from your appointed place of duty]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930330:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, Cocaine, Heroin, and marijuana, and did admit so in a written statement to Cpl B___, P.L, 8 TH EngrSptBn, 2d FSSG.
 Awarded forfeiture of $456.00 per month for 2 months, restriction and
extra duties for 45 days, reduction to E-2. Not appealed.
930407:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
930407:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

930407:  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 respondent's recent admission to Cpl B____, P.L. of wrongful usage of controlled substances, i.e. Cocaine, Heroin, and THC.

930520:  SJA review determined the case sufficient in law and fact.

930524:  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 930610 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 considering the applicant’s issue, the Board found the applicant’s statement, “ I was unaware of the zero tolerance regulation” to be unsupported. On 890908, the applicant executed in his own hand, understanding of the Marine Corps policy on the illegal use of drugs, by signing and printing his name, SSN, and the date on the Statement of Understanding of the Marine Corps Policy Concerning Illegal Use of Drugs. The applicant’s signature on the document is verified by two witnesses. Relief denied.

The Board further determined that at the time of his enlistment, the applicant admitted to pre-service drug use for which an enlistment waiver was granted. While Marine Corps drug abuse policy offers members diagnosed as dependent on drugs and alcohol rehabilitation without disciplinary punishment or administrative action when self-admitted, the Marine Corps regulation specifically precludes such amnesty for pre-service drug abusers. This exclusion is thoroughly explained in the Marine Corps Policy Concerning Illegal Use of Drugs. Therefore, relief is denied.

Further examination of the applicant’s Service Record reveals the applicant’s primary motivation at the time of his discharge was immediate and permanent separation from the Marine Corps. When notified of his commanding officer’s intention to process him for a less than honorable discharge, the applicant refused legal council and waived all his rights, including the rights to a hearing and to be provided copies of all information submitted regarding his separation.

 The NDRB recognizes that serving in the Marine Corps is very challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. The applicant was aware of the consequences of his in-service drug abuse. His actions were not in keeping with the high standards of order and good discipline which characterize the United States Marine Corps. Relief, therefore 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, the applicant must be aware that 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 be found to have existed during the period of enlistment in question. No such error or injustice is evident in the applicant’s service record.

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, may be considered. The applicant provided two letters of recommendation from his employer 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 clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore, relief will not be granted at this time. 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 within 15 years from the date of discharge.
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. 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 112a, wrongful use of a controlled substance.
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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