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

 ex-PFC, USMC
Docket No. MD02-00344

Applicant’s Request

The application for discharge review, received 020128, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant listed New York State Division of Veterans Affairs as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030206.  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, as submitted

1.  The US Marine Corps did not provide this veteran with the necessary legal, moral or financial support he needed which contributed to his alcohol abuse.

2.  The extenuating circumstances and the numerous awards and citations received during his active duty should be considered in evaluating his character of service.

3.  Marine was not provided the opportunity for alcohol counseling and rehabilitation to prevent his discharge.

Documentation

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

Letter from State of New York Executive Department Division of Veterans Affairs dated January 15, 2003 
Letter from Applicant dated September 21, 2001
Copy of DD Form 214
Letter from State of New York Executive Department Division of Veterans Affairs dated May 1, 2003 
Commander, Marine Corps Base Separation Authority Letter dated February 15, 2000
MCTFS Record of Service (2 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		970418 - 970609	COG

Period of Service Under Review:

Date of Enlistment:  970610		Date of Discharge:  000310

Length of Service (years, months, days):

	Active:    02  09  01
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  36

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (4)			Conduct:  4.1 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, LOA (2)

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:

970328:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

980312:	NJP for violation of UCMJ, Article 134: Drunk and disorderly on or about 980221, which conduct was of a nature to bring discredit upon the armed forces.
Awarded restriction and extra duties for 30 days.  Not appealed.

980617:	Counseled this date concerning substandard performance by failing the Marine Corps Physical Fitness Test. 
 
990401:	Counseled for deficiencies in performance and conduct.  [Unsatisfactory performance of duties with a second failure of the Marine Corps Physical Fitness Test dated 990329.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990922:	NAVDRUGLAB [JACKSONVILLE FL], reported Applicant’s urine sample, received 990913, tested positive for [THC].

991012:	NJP for violation of UCMJ, Article 112a: Wrongfully use marijuana, a controlled substance at an unknown location between 990807 and 990907.
Awarded forfeiture of $100.00 pay per month for 2 months, extra duties for 45 days, reduction to E-2.  Not appealed.

991012:	Director, Substance Abuse Counselor Center, Headquarters Battalion, Headquarters, U.S. Marine Corps, Henderson Hall states SNM was seen by the Substance Abuse Counselor and it was recommended that he report to a medical officer for further evaluation.   SNM reported to a medical officer at the Navy Annex Branch Medical Clinic 991013.  The medical officer's recommendation was that Applicant attend intensive outpatient treatment.  SNM was scheduled to attend intensive outpatient treatment at the Substance Abuse Rehabilitation Services, Anacostia Naval Station in Washington D.C. 

991019:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

991020:	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.

000111:	Director, Substance Abuse Counselor Center, Headquarters Battalion, Headquarters, U.S. Marine Corps, Henderson Hall discharged SNM from outpatient treatment as a successful completion, recommended SNM attend AA meetings three times per week and weekly SACO meetings until discharge.

000124:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the documented use of a controlled substance.

000127:	Counseled for deficiencies in performance and conduct.  [NJP held on 991012 for use of illegal drugs, as identified by NAVDRUGLAB message 221641Z SEP 99.  Seen by a substance abuse counselor (SACC) and diagnosed for alcohol dependency on 991012.  Attended and successfully completed the required outpatient treatment on 000111.]  Disciplinary and discharge warning issued.

000215:	SJA review determined the case sufficient in law and fact.

000215:	GCMCA [Commander, 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 000310 under other than honorable conditions for misconduct due to drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issues 1 and 2.  There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The discharge was proper and equitable.  Relief denied.

Issue 3.  The Board found no impropriety or inequity based upon the substance abuse treatment the Applicant received while in the Marine Corps, or the fact that he was discharged one month after completing treatment.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  Relief not warranted.

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.  Representation at a personal appearance hearing is recommended but not required.  

  

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.  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.   

C.  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.

D.  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