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

  ex-PFC, USMC
Docket No. MD03-00430

Applicant’s Request

The application for discharge review was received on 20030114.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031205.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 stated

Applicant’s issues, as stated on the application:

1.  "My discharge was inequitable because they used an isolated incident in 3 yrs & 10 days of service with no other adverse action  My discharge was improper because my civilian conviction properly listed on my enlistment documents was used in my discharge was used in my proceedings.  Also in which there was also questions because the writing was not all legible on my enlistment documents.  That they should not of used my civilian conviction in which I came in as a waver on me.  The Letter I sent also talks about my proceedings and other issues that had happened.  I wasn’t given due Process because I was never give a second urinalysis when I had tested positive on the first urinalysis test.  In the 3 yrs and 10 days I have never had a positive test."

Additional issues submitted by Applicant’s counsel/representative (American Legion):

2. " (Equity Issue) This former member requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application."

Documentation

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

Applicant’s DD Form 214 (3)
Letter to Senator P_ W_ from Applicant, dated August 22, 2002
Letter to Applicant from Senator P_ W_, dated May 14, 2002 and April 25, 2002
Constituent Intake form, dated April 25, 2002
Letter to Colonel W_ from Senator P_ W_, dated August 6, 2002
Privacy Act authorization form, dated May 13, 2002
Twenty-eight pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		990727		COG

Period of Service Under Review:

Date of Enlistment:  990728		Date of Discharge:  020807

Length of Service (years, months, days):

	Active:    03  00  10
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (8)			Conduct:  4.2 (8)

Military Decorations:  None

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

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:

990719:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

990726:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver granted.

001019:	Counseled for deficiencies in performance and conduct.  [Your recent alcohol related incident.  At 2300 on 001018 you were involved in an incident at Barracks 220 aboard Camp Foster where beer bottles were thrown from the second deck into the parking lot.  This is a direct violation of MARCORBASEJAPAN order 1600.1B since you admitted to consuming alcohol and purchasing alcohol for Marines under the age of 21.  Disregard for orders will not be tolerated.  You compounded your violation by attempting to lie when questioned by the duty NCO.  Integrity is the hallmark of a Marine.  A breech of this ethic brings about serious question of your moral character and judgment.  You have been implicated in two other incidents involving alcohol but you were far enough outside of the evidence to be given the benefit of the doubt.  Three incidents with at least some implication of your involvement is beyond coincidence.  Upon reporting back to your command you will see the BN SACO for screening for possible alcohol related problems.]  Necessary corrective actions explained, sources of assistance provided.

010716:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 010710, tested positive for THC.

011004:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully used marijuana on 010710.
Awarded forfeiture of $584.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Forfeiture for 1 month suspended for 6 months.  Not appealed.

020110:	Medical evaluation:  No diagnosis at this time.  [Extracted from supporting documents submitted by the Applicant.]

020110:	Applicant signed statement of understanding of treatment for substance abuse at a VA medical center.

020314:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.  [Extracted from supporting documents submitted by the Applicant.]

020314:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.  [Extracted from supporting documents submitted by the Applicant.]

020314:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was based upon a positive urinalysis on 010716, and Battalion NJP as follows:  Art 112a: At an unknown location, on or before 16 July 01, wrongfully used marijuana.  [Extracted from supporting documents submitted by the Applicant.]

020730:	SJA review determined the case sufficient in law and fact.

020730:	GCMCA [Commander, 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.

Partial discharge package missing from Applicant’s service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020807 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 used illegal drugs.  Even one instance of drug abuse while on active duty warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The statements and documentation provided by the Applicant failed to refute the presumption that his discharge was proper and equitable.  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.  Relief denied.

Issue 2.  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