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USMC | DRB | 2001_Marine | MD01-00986
Original file (MD01-00986.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD01-00986

Applicant’s Request
The application for discharge review, received 010725, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to general/under honorable conditions. 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 020320. 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/INVOL DIS (BOARD WAIVED (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. My discharge was inequitable because it was based on an isolated incident in 24 months of service with no other adverse action. I feel that I have served my punishment for this mistake and request that my discharge be upgraded to general/under honorable conditions. Other than my mistake, I feel that I served honorably to my country. Thank you for your consideration.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of certificate of commendation dated November 3, 1994
Copy of statement of immediate supervisor dated January 31, 1995
Character reference dated July 12, 2001
Copy of negative test results dated March 16, 1998
Twenty-three pages from applicant's service record, not previously available to the Board

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                930527 - 930824  COG

 Period of Service Under Review :
Date of Enlistment: 930825               Date of Discharge: 950821

 Length of Service (years, months, days):

         Active: 01 11 27
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 73

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (5)                       Conduct: 3.8 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Certificate of Commendation

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN Par. 6210.5.

 Chronological Listing of Significant Service Events :

950125:  NAVDRUGLAB, Jacksonville, FL, reported applicant’s urine sample, received 950120, tested positive for THC. [Extracted from supporting documents furnished by the applicant.]

 950130:  NJP for violation of UCMJ, Article 112A:
 Specification: Wrongful use of a controlled substance, to wit: THC.
Awarded forfeiture of $478.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC. Not appealed.
950206:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent. [Extracted from supporting documents furnished by the applicant.]
950214:  Counseled for deficiencies in performance and conduct. [Results of medical evaluation completed on 6Feb95. Applicant not found to be substance abuse dependent for THC.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Extracted from supporting documents furnished by the applicant.]
950327:  NAVDRUGLAB, Jacksonville, FL, reported applicant’s urine sample, received 950322, tested positive for THC. [Extracted from supporting documents furnished by the applicant.]

UNDATED:         Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. [Extracted from supporting documents furnished by the applicant.]
UNDATED:         Applicant advised of his rights. [Extracted from supporting documents furnished by the applicant.]

UNDATED:         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 in-service drug abuse, namely THC, as evidenced by NAVDRUGLAB JAXFL messages 250104Z Jan95 and 271800Z Mar95, and page 11 and 12 of your service record. [Extracted from supporting documents furnished by the applicant.]

Discharge package and DD Form 214 are missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 950621 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).

Issue 1. The applicant states, his discharge was based on one isolated incident in two years of documented outstanding service with no other infractions. T he applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”. The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The discharge was proper and equitable. Relief denied.

 Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice 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, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He 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. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly 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 P1900.16D), 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 “ afls10.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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