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

 ex-PVT, USMC
Docket No. MD01-00836

Applicant’s Request

The application for discharge review, received 010604, requested that the characterization of service on 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 011218.  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 and basis 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.  My background is Native American-Lakota Sioux and Cherokee.

2.  I am a practitioner of WICCA.

3.  The pipe that was found may have been used in one of my ceremonies.  Other practitioners had access to this pipe.

4.  In my ceremonies, I use various herbs.  In particular, a Native American tobacco, sage, corn meal, and other items from my medicine pouch.

5.  My drug testing is inaccurate.  Certain NCO's and one PFC that I know were user of marijuana.  In being in their rooms, my system may have absorbed what was there in the air.

6.  I was "hazed" in the past due to my differences.  I feared ( and still do) for my life if I reported anything that happened in and around the barracks.

7.  My discharge was improper because in no way was my practive of WICCA detrimental to my job. I carried out my duties as an assistant section chief of my Howitzer artillery unit with no reports of any type of accidents.

8.  My discharge is improper because I carried out my duties as assigned, completed all necessary course to my MOS, was ( and still am ) a blood donor, and advanced rapidly in my rating. 

Documentation

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

Copy of Certificate of Completion (School of Infantry)
Copy of Diploma (Cannon Crewman Course (USMC))
Copy of LCpl Appointment Certificate
Copy of Certificate of Completion (The M198 155MM Towed Howitzer)
Copy of Certificate of Completion (Spelling)
Letter of Support from Applicant's Mother
List of Senators, Congressmen, Representatives, Commandant and Recruiter, that letters were sent to
Newspaper Article (3pgs)
Copy of Drug Abuse Screening Documentation Form
Copy of Letter from United State Senate D____ E___ to Ms L____ B. M___
Copy of Letter from Congressman N____ D___ to Mr O___ M____ J___ M___
Copy of Letter from State Senate C___ J____ to Mrs L____ M____
Copy of Thank You Letter from C.E.O. G___ H___ and staff of The Blood Connection Donation Center
Copy of Letter from L. E. W___ Head, Office of Legislative Affairs Correspondence
Character Reference Letter (2pgs)
Letter of Recommendation from D__ D.R____, Sr. Captain CAP, USARA Commander
Reference Letter from Applicant's Grandfather Retired SGT. USAF
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		970926 - 980621	COG

Period of Service Under Review:

Date of Enlistment:  980622		Date of Discharge:  001107

Length of Service (years, months, days):

	Active:    02  04  16
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  50

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (8)			Conduct:  3.6 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, Rifle Expert Badge (3rd), GCM

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:

970922:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

991007:	Counseled for deficiencies in performance and conduct.  [Your failure to adhere to uniform regulations on 2 separate occasions.  You failed to have the correct chevrons on your uniform months after being promoted to the next higher grade].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000306:	Counseled for deficiencies in performance and conduct.  [Insubordinate conduct toward non-commissioned officers with provoking speech and gestures during a battery field operation showing a total lack of tact and discipline].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000503:	Counseled for deficiencies in performance and conduct.  [Poor judgement, poor attitude, disobeying orders and being UA.  Specifically: Being UA from remedial PT, being disrespectful to NCOs and not following orders from your section chief and Platoon Sergeant.  Using a disrespectful tone in your voice when talking to senior Marine and answering questions with questions].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000510:	NJP for violation of UCMJ, Article 86: Was on or about 1100, 000501 UA until 1200, 000501.
Awarded forfeiture of $273.00, restriction and extra duties for 14 days.  Not appealed.

000522:	NAVDRUGLAB [JACKSONVILLE FL], reported applicant’s urine sample, received 000517, tested positive for [THC].

000523:	Counseled concerning my illegal drug involvement (THC usage through urinalysis confirmed by Nav Drug Lab JAXFL msg R222245Z May 00].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000524:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000524:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000531:	NJP for violation of UCMJ, Article 92: Did on 000515 failed to obey order ore regulation by having a bottle of Vodka in his BEQ, violation of UCMJ, Article 92: Did on 000520, 1926 failed to obey order from the ADNCO while conducting EPD, violation of UCMJ, Article 92: Was insubordinate toward the ADNCO and disrespectful in language, violation of Article 112a: Did at an unknown time and place use a controlled substance, THC.
Awarded forfeiture of $563.00 per pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-2.  Not appealed.

000601:	Counseled for deficiencies in performance and conduct.  [Failure to prepare for a scheduled Alpha uniform inspection on 1 June 00.  You knew of the scheduled inspection and decided to turn in your uniform the day prior to the inspection cleaners.  You did not get approval to turn in your uniform and did not inform your chain of command, you know better and this type of conduct will not be tolerated].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000621:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was NAVDRUGLAB JACKSONVILLE, FL message 222245z May 00 which indicates your positive urinalysis.  

000626:	Clinical Psychologist, Alcohol Treatment Facility evaluation indicates drug abuse, isolated incident, found alcohol dependence.

000705:	Discharged from Alcohol Treatment Facility as a treatment failure for being UA.

000728:	Counseled concerning my illegal drug involvement (THC usage through urinalysis confirmed by Nav Drug Lab JAXFL msg 141600Z Jul 00.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000728:	Counseled for deficiencies in performance and conduct.  [Disobeying orders, being disrespectful to NCOs on 000721 and 000726.  Not following rules and regulations by not maintaining grooming standards on 000726.  This irresponsible behavior and conduct will not be tolerated].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000807:	Counseled for deficiencies in performance and conduct.  [Failure to obey orders.  Disrespect to NCO and a LCpl in charge of a work detail on 4 August].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
 
000811:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

001017:	Counseled for deficiencies in performance and conduct.  [Alcohol treatment failure.  Treatment failure due to not complying with ATF requirements.  Failure to conduct assigned duties: failure to attend weekly meeting with the SACO, failure to attend AA meetings as assigned].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001017:	Counseled for deficiencies in performance and conduct.  [Failure to obey uniform regulations IAW MCO P1020.34.  Failure to maintain grooming standards, failure to polish your boots, and maintain uniform requirements].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001019:	SJA review determined the case sufficient in law and fact.

001024:	GCMCA [Commanding General, 2d Marine Division, II Marine Expeditionary Force] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

001107:	NJP for violation of UCMJ, Article 112a: Did at an unknown time and place use a controlled substance, THC.
Awarded forfeiture of $465.00 per month for 2 months.  Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 001107 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).

Issues 1, 2 and 7.  The Board found that the applicant’s ethnicity and practice of WICCA do not mitigate his misconduct.  Relief denied.

Issues 3 and 4.  The Board found no relevance to the applicant’s pipe or herbs in his commission of offenses that led to his numerous derogatory counseling entries, non-judicial punishments, and subsequent administrative separation.  Relief denied.

Issue 5.  The Board rejects the applicant’s assertion that the drug testing he received was inaccurate.  The applicant tested positive for marijuana on more than one occasion.  The applicant’urine sample tested positive for containing THC. Drug abuse warranted processing for separation, normally under other than honorable conditions.  The discharge was proper and equitable.  Relief denied.

Issue 6.  The Board found no evidence that the applicant was hazed or treated unfairly by his command.  Relief denied.

Issue 8.  Under other than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on three occasions and adverse counseling entries on ten other occasions.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  Relief denied.

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 P1900.16E), 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 86, absent from place of duty; Article 92, failure to obey a lawful general order; 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