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

 ex-LCpl, USMC 
Docket No. MD03-00643

Applicant’s Request

The application for discharge review was received on 20030226.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040205.  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.  “I served honorable with the Marine Corps until the time of the incident that led to my Administrative Discharge.  I received two Good Conduct Awards and several letters of recognition for above average service during various assignments.  I held the rank of Sergeant, and attended NCO schools with success.  My SRB will testify to above average fitness reports.  I held a high security clearance for special classified projects.  I trained hundreds of recruits on the Parris Island Rifle Range.  I made one mistake as a result of combining alcohol with prescription medication (Percoset) for medical conditions I was being treated for after surgery, which led to my foolishly smoking marijuana, even though I do not remember the incident.  It was the only infraction on my record.  I intended to make the Marine Corps my career, and re-enlisted after my first enlistment.  My surgery on my foot led me to limited duty after surgery and was headed for a medical board, because I was not expected to fully recover for normal duty, and was denied by my CO due to my infraction.  This, along with the other medical problems I sustained during my enlistment, occurred BEFORE my infraction.  I feel that I have been unjustly denied my medical board before being discharged, and feel that my request for an upgrade in my discharge to Honorable I justified.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		941017 - 981110	HON
	Inactive: USMCR(J)		941011 - 941016	COG

Period of Service Under Review:

Date of Enlistment:  981111		Date of Discharge:  020712

Length of Service (years, months, days):

	Active:    03  08  01
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  40

Highest Rank:  SGT

Final Enlisted Performance Evaluation Averages (number of marks): The enlisted performance reports were available to the Board for review through 20011101.

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM(2), NDSM(2), SSDR(2), MUC, COC(2), LOA(3), NASA Distinguished  Service Medal, Rifle Expert Badge

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:

981111:	Reenlisted at HQSVCBN II MEF Camp Lejeune, NC for 4 years.

011213:	NAVDRUGLAB [Jacksonville, FL], reported Applicant’s urine sample, received 011206, tested positive for [THC].

020123:	SACO evaluation indicates applicant does not meet the Diagnostic and Statistical Manual of Mental Disorders IV criteria for Cannibis Abuse or Dependence.

020221:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112A: On or between 011127 and 011210, wrongfully use Marijuana, a Schedule I controlled substance.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Forfeiture of $584.00, reduced to E-4, restriction for 2 months.
	CA action 020221:  Sentence approved and will be executed, but the execution of that part of the sentence extending to forfeiture of pay ($584.00) for one month, is suspended for 6 months, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action.

020408:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement; specifically, possession and usage of a controlled substance, marijuana, as evidenced by your positive urinalysis batch 289/04 conducted on 011206 by the unit SACO.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020524:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020524:	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.

020529:	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 service abuse of a controlled substance, namely, THC as evidenced by Naval Drug Lab Jacksonville, Florida message 131948z Jan 02.

020628:	SJA review determined the case sufficient in law and fact.

020628:	GCMCA [Commanding General, 2d Marine Aircraft Wing] 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 20020712 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.  Despite the positive aspects of the Applicant’s service, drug abuse warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  While the Applicant may feel that he has been unjustly denied a medical board, administrative separation for misconduct takes precedence over medical board procedures.  Relief denied.

The Applicant’s discharge characterization for the period of enlistment under review 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