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

 ex-PFC, USMC
Docket No. MD02-01144

Applicant’s Request

The application for discharge review, received 020807, 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 030515.  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.  On March 17, 19999, I was interviewed by Sgt. S_ C_ of the criminal investigation division at Cherry Point NC about my knowledge of other Marines using illegal narcotics.  I was advised that I was not a suspect of any kind and my cooperation would keep me out of any further trouble.  I was fully cooperative and gave all information I had including an incident in which I was handed several small white pills and asked to give them to another Marine.  The pills where in my possession for only several seconds.  I informed Sgt. C_ that these could possibly have been illegal narcotics but I wasn’t sure.  To me they appeared to be something like Tylenol.  I would never knowingly make an illegal drug transaction.  I was told by Sgt C_ that I would not be charged or be in any type of trouble related to this incident.  After making a sworn statement I submitted to a urinalysis as further proof that I had not used illegal drugs.  Over the next several weeks I continued to voluntarily give C.I.D. any information that I felt would be helpful to their investigation.   During this time it was unknown by anyone that I had been in contact with C.I.D. I was in such a position that I could obtain all types of information such as names, dates, and events involving narcotics use among Marines.  I did this because it was my job as a military policeman and because it was the morally right thing to do.  The information I obtained was helpful in the arrest and conviction of several military and civilian personnel.  On Apr. 2, 1999 I was advised by my operations chief MSgt A_ that I had tested positive on the urinalysis that I had taken on March 17.  I was ordered to turn in my badge, my base driving privileges were revoked and I was charged with wrongful use of a controlled substance (112a).  I was again interviewed by Sgt. C_ of C.I.D. and was told that I had tested positive for MDMA. On this day I made another sworn statement (see document: 1) saying that I was innocent of these charges.  On this day I also submitted to another urinalysis.  I also learned that the individuals whom I had helped C.I.D. investigate, found out that it was I who had helped C.I.D.  Now I was being charged for something that I did not do and my personal safety was at risk.  I felt that it would be in my best interest to seek help from Senator J_ W_ (see document 2).  I wrote a letter to Sentaor W_ explaining my situation and saying that any help would be greatly appreciated.  I was never questioned or interviewed by anyone from Senator W_'s office.  After several weeks I was told that I was being charged with possession of an unknown amount of an unknown controlled substance.  This was in reference to the voluntary admission that I had made in the sworn statement on 17Mar99.  This is the same admission that I was told I would not be charged with.  On 8Jun99 I stood nonjudical punishment before my commanding officer LtCol J_ A. B_ where I was formally charged and sentenced to reduction in rank to E-2, 14 days EPD, and separation from the Marine Corps under other than honorable conditions.  During this proceeding I was ordered by LtCol. B_ to alter the date of Section 5 of the charge sheet.  I am still not sure why I was ordered to do this.  I did not appeal the decision at the time because I felt that the longer I stayed at Cherry Point my safety would be at risk from those whom I helped convict (see document 7).  After my seperation from the Marine Corps I received a letter from Senator W_ explaining his actions.  Attached was a letter from Mr. L_ E_ Wood telling Mr. W_ that I never tested positive on a urinalysis and that I had been in trouble for possession.  I feel that Senator J_ W_ was lied to by my command at Cherry Point and I will raise this issue with him again.  After seeking legal advice I requested copies of all urinalysis and copies of all statements made by me persuant to the freedom of information act (see document 3).  I received a copy of only 1 statement and results from 1 urinalysis (not of 17Mar99).  I have inquired into this and the documents seem to have mysteriously disappeared from unit records at Cherry Point.  I will also take this issue up with Senator W_.  I feel that I have served my country honorably and I feel I deserve a discharge under honorable conditions.  In the statements of my immediate supervisors I was recommended for a discharge under honorable condtions (see document 8).  In my opinion I was wrongfly charged in the first place.  I request a discharge under honorable conditions so that I can persue a career in law enforcement and possible further military service.  After Sep. 11 I feel it is my duty to continue to serve my country honorably.  I beg you to allow me to do that.  Thank you for youre time and I look forward to hearing from you.  -Semper Fi-

Documentation

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

Sworn statement, dated April 2, 1999
Letter to Senator J_ W_, undated
Letter written to Senator J_ W_, dated September 21, 1999
Letter written by Applicant to Commanding General MCAS Cherry Point, dated February 14, 2000
Letter from Joint Law Center, FOIA/PA office, dated March 15, 2000
Results of urinalysis, dated April 22, 1999
Nonjudicial punishment, dated June 11, 1999
Statement of immediate supervisor, dated June 16, 1999
Statement of immediate supervisor, dated June 17, 1999
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		950811 - 960805	COG

Period of Service Under Review:

Date of Enlistment:  960806		Date of Discharge:  990730

Length of Service (years, months, days):

	Active:    02  11  25
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  40

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (9)			Conduct:  4.3 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

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:

950731:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

971003:	Counseled for deficiencies in performance and conduct.  [Failure to maintain Marine Corps physical fitness standards of performance by failing to pass the PFT on 970926.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981118:	Counseled for deficiencies in performance and conduct.  [Unsatisfactory performance, specifically, unsatisfactory progress while assigned to the Squadron remedial physical fitness program.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990608:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully possess an unknown amount of an unknown illegal controlled substance between 981201 and 981231.
Awarded extra duties for 14 days, reduction to PFC.  Not appealed.

990620:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was possession of an unknown controlled substance as evidenced by Applicant’s statement to Criminal Investigation Division of 17 March 1999. 

990620:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990630:	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.

990722:	SJA review determined the case sufficient in law and fact.

990721:	GCMCA [Commanding General, Marine Corps Air Station, Cherry Point] 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 990730 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).

Issue 1.  There is credible evidence in the record that the Applicant possessed illegal drugs.  Drug possession warranted processing for separation, normally under other than honorable conditions.  Despite the allegations in the Applicant’s statement, the Board found no indication that the Applicant was improperly or inequitably punished, separated or otherwise denied his rights concerning the drug investigation and subsequent events that led to his administrative separation.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  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