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

 ex-Pvt, USMC
Docket No. MD01-00966

Applicant’s Request

The application for discharge review, received 010717, 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.  Discharge that I received was improper solely on the events that lead up to the discharge.  The recruiter, Sgt. L_ was overly persistent and yet vague and completely unclear in the aspects of my M.O.S., MCT training, and, if I decided to get out without contract being over with.  I believe He (recruiter) knew I wasn't ready with the list of jobs I've had which shows I have a problem with commitment.

2.  In boot camp, I spoke with my C.O., and asked if I could change my active status to reservist.  He said it was possible and talk to him after graduation.  I couldn't find him.

3.  This is the most important issue which changed my view as a marine.  During Team week I was out in the Rake's crew. Sgt. A_ made myself and I think about 6-8 other Marines in boot camp pick 30-50lbs rocks and move then running about 100 feet.  And run back to get more rocks.  About 12 times back and forth.  Also had us job back and forth about a block and a half on a flag day when were supposed to take it easy on very hot days.  I nearly passed out and was very dizzy for about a 1/2 hour.  Our senior drill instructor found out because a marine wrote their family.  We were told not to tell the media cause that wouldn't look good and Sgt. A_ was to be disciplined.  From that day, that complete incompetence and ignorance of Sgt A_ showed me the system in the Marine Corp is unjust and unfair.  My choice was to be discharged threw the chaplain, which did not work.

Applicant marked "I HAVE LISTED ADDITIONAL ISSUES A AN ATTACHMENT TO THIS APPLICATION." None were found.

Documentation

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

Statement from applicant, 7-10-01
Statement from applicant, 10-22-01
Copy of veterans identification data

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		970722 - 970727	COG

Period of Service Under Review:

Date of Enlistment:  970728		Date of Discharge:  980313

Length of Service (years, months, days):

	Active:    00  07  16
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  48

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (2)			Conduct:  3.6 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  21

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:

970721:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

971215:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 2359, 22Nov97 to 0240, 9Dec97 (17 days).
Awarded forfeiture of $450.00 per month for 1 month, restriction and extra duties for 30 days.  Not appealed.

980122:	NJP for violation of UCMJ, Article 112A;
Specification: Wrongfully use tetrahydrocannabinol, to wit: NAVDRUGLAB Great Lakes, IL message 172017Z Dec97.
Awarded forfeiture of $463.00 per month for 1 month, restriction for 30 days.  Not appealed.

980210:	Medical evaluation for drug abuse found the applicant not to be a drug dependent. 

980224:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

980224:	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.

980227:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement, specifically, tetrahydrocannabinol identified through urinalysis testing (NAVDRUGLAB Great Lakes, IL message 172017Z Dec97].  Advised that processing for administrative separation for misconduct is mandatory.

980228:	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 positive urinalysis test result from an involuntary unit urinalysis and subsequent guilty finding at NJP on 22 January 1998. 

980307:	SJA review determined the case sufficient in law and fact.

980306:	GCMCA [Commanding General, Marine Corps Base] 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 980313 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 and 2.  The Board determined these issues have no merit.  The Board found the applicant’s discussion of his enlistment contract, recruiter, problems with commitment and his desire to change from active to reserve status had no bearing on his use of illegal drugs.  Relief denied.

Issue 3. The Board found the applicant’s allegations of mistreatment had no bearing on his subsequent use of illegal drugs. The Board’s charter limits its review to a determination of propriety and equity of the discharge. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  The applicant was discharged under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was a positive urinalysis test result from an involuntary unit urinalysis and subsequent guilty finding at NJP on 22 January 1998.  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 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 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