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

 ex-Pvt, USMC
Docket No. MD01-00331

Applicant’s Request

The application for discharge review, received 010123, 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 020215.  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 PVT (applicant) went into the marine corps thinking we were going to war or fight in Kosvo this was told to us by my Recruiter Gunny Sergeant S_ But when I and a few of my friends got there, they said there was know war.  Some of my friends that came in on the same thought got because since the recruiter lied they got out but I decided to stay in.  When I was in the Marines I was called Radical names which I got in trouble for. because I was the only blk marine in my (plt) platoon and to make a long story short they lied to me.

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)		990209 - 990221	COG

Period of Service Under Review:

Date of Enlistment:  990222		Date of Discharge:  010104

Length of Service (years, months, days):

	Active:    01  10  13
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  38

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (7)			Conduct:  4.0 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  31

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:

990126:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

000322:	NJP for violation of UCMJ, Article 123:
Specification: Forge checks from a Private's checkbook while the Marine was incarcerated in the brig between 10Dec99 and 16Jan00.
Violation of UCMJ, Article 121: Steal Private's checkbook while the Marine was in the brig on 10Dec99.
Awarded forfeiture of $502.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

000410:	NJP for violation of UCMJ, Article 108:
Specification: Willfully damage an issued weapon when purposely dropped his weapon out of a 2 ton truck.
Awarded forfeiture of $234.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture, restriction and extra duty suspended for 6 months.  Not appealed.

000818:	Applicant to unauthorized absence 0700, 16Aug00.

000913:	Applicant from unauthorized absence 0700, 13Sep00 (28 days/surrendered).

001020:	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1: Unauthorized absence 0700, 3Aug00 to 0700, 6Aug00 (3 days/surrendered).
Specification 2: Unauthorized absence 0700, 6Aug00 to 0700, 13Sep00.
Violation of UCMJ, Article 87:
Specification: Miss movement through neglect on 3Aug00.
Violation of UCMJ, Article 91:
Specification: Treat with disrespect in language toward Sgt by saying "Go ahead and charge me, I don't care” on 25Sep00.
Awarded forfeiture of $502.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

001023:	Counseled for deficiencies in performance and conduct.  [On 000216, you were punished at Battalion level NJP for violating Articles 121 and 123 of the UCMJ.  Specifically, you took another Marine's checkbook and without permission and wrote checks against this Marine's bank account while he was in the brig.  On 000410, you were punished at company level NJP for violation of Article 108.  Specifically, you dropped your weapon from the back of a tactical vehicle while deployed to NTC, Fort Irwin, CA.  On 001020, you were punished at battalion level NJP for violating Article 86 x 2, 87, 91 and 92.  Specifically, you went UA on the morning the Battalion was deploying to Idaho as part of Task Force Wildfire 2000].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001108:	NAVDRUGLAB, San Diego, CA reported applicant's urine sample, received 001101, tested positive for THC.

001115:	NAVDRUGLAB, San Diego, CA reported applicant's urine sample, received 001108, tested positive for THC.

001201:	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.

001202:	NJP for violation of UCMJ, Article 112A:
Specification: Tested positive on a urinalysis test on 26Oct00, to wit: THC.
Awarded forfeiture of $502.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

001202:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

001220:	Applicant refused medical officer's evaluation for drug abuse.  

001220:	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 use of marijuana (THC). 

001222:	SJA review determined the case sufficient in law and fact.

001222:	GCMCA [Commanding General, 1st Marine Division (Rein)] 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 010104 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 Board found that the lies the applicant was allegedly told and the alleged racism against him did not mitigate his use of illegal drugs.  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.

The applicant 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 P1900.16E), effective 31 Jan 97 until 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 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