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

Ex-PFC, USMC
Docket No. MD00-00211

Applicant’s Request

The application for discharge review, received 991124, 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 000817.  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, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I would like to start by saying I was discharged for drug abuse.  At no time while in service did I test positive for any illegal substance.  I did get caught with steroids by the border patrol.  But there was no article for possession, so they gave me the above.  I am not a illegal substance user.  I am willing to prove this.  I will take any kind of test you are willing to produce.  I have the utmost confidence in my capabilities and cleanliness.  I am currently employed by B&B Cash Grocery and plan to continue my employment there.  I am also attending H.C.C. (Hillsborough Community College).  I am on my way to a four year university.  I have not been in jail or arrested before or after the Marine Corps.  I would like to leave with you the name of contacts for employment and college.  U-save Supermarket (phone number deleted) Mr. M_   H.C.C. (phone number deleted) Admissions, Registration, and Records

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		940518 - 941205	COG

Period of Service Under Review:

Date of Enlistment:  941206		Date of Discharge:  970213

Length of Service (years, months, days):

	Active:    02  02  08
	Inactive:  None

Age at Entry:  20			Years Contracted:  5

Education Level:  12			AFQT:  79

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (5)			Conduct:  4.2 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

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:

941205:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver was granted but not required. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

940507:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

951026:	Counseled for deficiencies in performance and conduct.  [Poor judgement, failure to obey a lawful order, conduct unbecoming of a Marine and your involvement of a discreditable nature with military authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960322:	Counseled for deficiencies in performance and conduct.  [Absent without authorization from his appointed place of duty from 0330-1345, 22Mar96.  Applicant had completed checking for guard duty and was directed to report back to his work section by the 22 Area Guard Chief.  Applicant was also instructed when and where to report 25 Mar with his "gear squared away".  Applicant did not report back to his work section either in person or by phone.  Applicant went to his home and began "squaring his gear away".  Due to an outdated recall roster attempts to reach applicant by phone failed.  Sgt's C_ and N_ went to applicant's home and returned him to his work section at 1345.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960820:	Analytical Chemistry Report: Analysis for anabolic androgenic steroids.  Analytical finding: Negative.

960918:	NJP for violation of UCMJ, Article 112A:
Specification: Possession of anabolic steroids at the San Ysidro point of entry from Mexico on 1943, 31 July 1996.
Awarded forfeiture of $450.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Forfeiture of $300.00 pay per month for 1 month, restriction and extra duty for 15 days suspended for 6 months.  Not appealed.

961008:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse.

961018:	Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.

961114:	Applicant waived his right a hearing before an Administrative Discharge Board.

961203:	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 possession and smuggling of illegal anabolic steroids from Mexico on 31 July 1996. 

961217:	Medical evaluation:  Applicant refused medical evaluation. 

970115:	SJA review determined the case sufficient in law and fact.

970122:	GCMCA [Commanding General, 1st Force Service Support Group] 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 970213 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 this issue is without merit.  The applicant claims he never tested positive for any illegal drug while in the military and he was caught with steroids by the Border patrol.  The applicant was discharged for possession of an illegal drug, and not use.  Use and/or possession of an illegal substance or drug paraphernalia are violations of the UCMJ.  Steroids, although legal in the civilian community, are illegal in the military.  The discharge was proper and equitable.  Relief denied.

The applicant states he is attending Community College and has never been in jail or arrested before or after the Marine Corps.  The applicant did not provide any documentation to support his claims.  Continuing education, alone, does not warrant recharacterization of an individual’s discharge.  Additionally, although the applicant was not jailed/arrested before or after serving in the Marine Corps, he was apprehended by the Border Patrol, for possession of an illegal drug, while serving in the Marine Corps.  Possession of an illegal drug is an incident of drug abuse and a violation of the UCMJ.  The discharge was proper and equitable.  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 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