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

 ex-Pvt, USMC
Docket No. MD99-00399

Applicant’s Request

The application for discharge review, received 990126, requested that the characterization of service on the discharge be changed to Honorable or General/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991206.  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 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Discharge was unjust because of reason for discharge.  Character of Marine at time of discharge and leadership Marine care forth both; before and after discharge while in uniform.

2.  No N/A or AA was offered after failing first urinalysis.  No counseling was offered to Marine after failure of first urinalysis, second urinalysis was given soon after first urinalysis.

3.  The USMC used evidence given by a non-government civilian, unstable witness to bring the charges forward and to charge Marine of self deteriating crimes that caused no malice to others professionally or socially.

Documentation

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

Copy of DD Form 214
Applicant's Record of Trial by Summary Court-Martial (DD Form 2329)
Copy of Applicant's Social Security card and Driver License
Applicant's Letter of 05-01-99 concerning discharge action

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive:   USMCR(J)		920214 - 920302	COG
		    USMCR(J)		910621 - 911112 	ELS (moral)

Period of Service Under Review:

Date of Enlistment:  920303		Date of Discharge:  960119

Length of Service (years, months, days):

	Active:    03  10  17
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  76

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (15)			Conduct:  3.9 (15)

Military Decorations:  None

Unit/Campaign/Service Awards:  REB, NDSM, MM, SSDR

Days of Unauthorized Absence:  22

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Drug abuse, authority:  MARCORSEPMAN 6210.5.

Chronological Listing of Significant Service Events:

920213:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

930622:	NJP for violation of UCMJ, Article 92:  disobey a lawful written order, to wit:  MARCORPBASEJAPANO 10120.1A, by driving a POV without a driver's license.
Awarded forfeiture of $400.00 per month for 1 month.  Not appealed.

940427:	NJP for violation of UCMJ, Article 92:  violated Base Traffic Regulations Code 013 with a .06% BAC. 
Awarded forfeiture of $484.00 per month for 1 month, extra duty for 45 days (38 days EPD suspended for six months).  Not appealed.

940504:	Counseled for deficiencies in performance and conduct - violation Art 92, UCMJ, Disobeying a lawful written order by driving a POV without a driver's license, violation Base Traffic Regulations Code 013 with a .06% BAC. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940714:	NJP for violation of UCMJ, Article 92:  member was told to be at FC-515 of 6MAY94 at 1700 with 782 gear and required uniforms for transportation to IZ and member disobeyed the said order; violation of UCMJ, Article 92:  member was told to get a haircut on or about 0900, 6MAY94 and member disobeyed that order and goat a haircut on or about 10MAY94; violation of UCMJ, Article 86:  UA from 1700, 940506, to 0630, 940509; violation of UCMJ, Article 86:  UA from 0530, 940624 to 0745, 940624.
	Awarded forfeiture of $200.00 per month for 2 months, restriction and extra duty for 30 days, forfeiture of $200.00 per month for 2 months and restriction and extra duty for 30 days (suspended for 2 months).  Not appealed.

950106:	Applicant acknowledged that he was eligible for promotion but not recommended for promotion to Cpl for the promotion month of Jan/Feb/Mar due to having not demonstrated leadership skills expected for the next higher rank.

950130:	Counseled for deficiencies in performance and conduct - failure to obey orders and absenting himself from his appointed place of duty without proper authority.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950321:	Applicant acknowledged that he was eligible for promotion but not recommended for promotion to Cpl for the promotion month of Apr/May/Jun due to having not demonstrated leadership skills expected for the next higher rank.

950614:	NJP for violation of UCMJ, Article 112a:  on or about 25Apr 95 wrongfully use TCH, a controlled substance.
	Awarded forfeiture of $478.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

950824:	NAVDRUGLAB Jacksonville, FL, reported applicant’s urine sample, received 21Aug95, tested positive for THC.

951016:	Summary Court Martial
		Charge I:  violation of UCMJ Article 112a
		Specification:  wrongful use of THC, 3 Aug 1995.
		Findings:  to Charge I and spec, guilty
Sentence:  Reduction to E-1 (Pvt), forfeiture of $569.00 pay per month for 1 months, confinement for 30 days. 
	CA 951016:  Sentence is approved and executed this date.

960116:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse as evidenced by summary court-martial of 951016 and the NAVDRUGLAB Jacksonville, FL msg 240158Z Aug 95..

960116:	Applicant advised of his rights and having elected not 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.

960116:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse.  The factual basis for this recommendation was due to summary court-martial of 951016 and the NAVDRUGLAB msg Jacksonville, FL 240158Z Aug 95.

960117:	SJA review determined the case sufficient in law and fact.

960117:	GCMCA [CO, 2d FSSG] 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 960119 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 the applicant’s issue 1, the Board determined it can not respond to this issue because it is not comprehensible the way it is written.  Relief denied.

In the applicant’s issue 2, the Board determined this issue is without merit.  The applicant was convicted at a summary court-martial of wrongful use of THC (drug abuse).  The final decision of any court-martial is final and not disputable by the NDRB.  Additionally, drug abuse requires mandatory processing for separation, according to Marine Corps regulations.  Relief denied.

In the applicant’s issue 3, the Board determined this issue has no merit.  The applicant’s issue is unclear.  There is no rule that forbids witnesses from being non-government civilians.  Additionally, the applicant violated the UCMJ by using an illegal drug, not once but admittedly, on several occasions.  Plus, he failed two drug tests.  Relief denied.

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 Present. 

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 86, unauthorized absence for more than 30 days].

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023