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

  ex-PFC, USMCR
Docket No. MD03-00810

Applicant’s Request

The application for discharge review was received on 20030402.  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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040312.  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.  “The reason why I feel my discharge should be changed.  Reason one the test that come back had the wrong Social Security number.  Reason two to prove myself I would of taken the test again right on the spot.  Reason three any job that was asked of me was done in a timely manor without any complaints.  Reason four I feel ashamed not going to war were I would of stood with my brother to defend our country honor.  A_ D_ H_ (Applicant).”

Documentation

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

Letter from Applicant, dated June 6, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  990527		Date of Discharge:  011022*

Length of Service (years, months, days):

	Active:    00  06  01
	Inactive:  01  10  26**

Age at Entry:  20			Years Contracted:  6

Education Level:  12			AFQT:  55

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (4)			Conduct:  3.8 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*Cannot confirm actual discharge date.  This is date of Discharge Authority.
**Cannot verify.

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:

991019:	Applicant reported for initial tour of active duty for training.

000419:	Applicant released from initial tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.

010522:	Counseled for deficiencies in performance and conduct.  [Absent without leave on 010521 while assigned to ADSW.  You failed to make proper plans for a successful return to work after going on weekend liberty.  This failure to plan properly resulted in your failure to report to work on 010521 and a scheduled dental appointment at NTC Great Lakes, IL.  You also failed to keep this command informed of your location and status.  By these actions you displayed a distinct lack of judgment, initiative, and responsibility.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010613:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully use a controlled substance on 010529, to wit: marijuana.
Awarded forfeiture of $78.00 per month for 1 month, reduction to PFC.  Not appealed.

010613:	Counseled for deficiencies in performance and conduct.  [On 010529, at Btry B, 1stBn, 14thMar, 4thMarDiv, Joliet, IL did wrongfully use a controlled substance, to wit: marijuana.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010614:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010614:	Applicant advised of 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.

010807:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was urinalysis of urine sample submitted 010529 indicated use of marijuana.  Commanding Officer’s comments (verbatim): 1.  It is recommended that Private First Class H_ (Applicant) be separated from the U. S. Marine Corps Reserve with an other than honorable characterization under paragraph 6210.5 of reference (a).  Enclosures (1) through (7) are attached as required by references (a) and (b), and are considered relevant to this case by the undersigned.
2.  On 29 May 2001, PFC H_ (Applicant) voluntarily submitted a urine sample during an Inspector-Instructor Staff-wide urinalysis.  On this date, SNM was a member of the staff performing ADSW for funerals.  Per enclosure (7), PFC H_’s (Applicant) specimen tested positive for marijuana.  It is because of this positive testing for marijuana that PFC H_ (Applicant) is being processed for discharge.
3.  As evidenced by enclosures (1) and (2), PFC H_ (Applicant) was notified of this unit’s intent to discharge via personal notification.  He was officially notified on 13 June 0l with the paperwork being signed on 14 June 01.
4.  One issue with this case is that the SSN on the Specimen Custody Document (DD Form 2624) did not match the SSN on PFC H_’s (Applicant) specimen bottle.  When this problem was identified, lstSgt de H_ contacted Mr. M_ U_ at the drug screening laboratory at Great Lakes (Telephone number deleted).  He verified that the SSN was in fact different on the bottle and the DD Form 2624.  PFC H_’s (Applicant) SSN is (social security number deleted).  The SSN on the DD Form 2624, (social security number deleted), was correct while the SSN on PFC H_’s (Applicant) specimen bottle, (social security number deleted), was incorrect.  PFC H_ (Applicant) had verified that both SSN’s were correct by affixing his signature to the command’s urinalysis ledger and by initialing the seal on the top of his specimen bottle.  PFC H_ (Applicant) either chose to ignore the specimen bottle error or he did not pay attention to the number that he was verifying.  We are positive that the specimen contained in PFC H_’s (Applicant) bottle is his, as the chain of custody from the Marine to the drug laboratory was unbroken.  Next, lstSgt de H_ called Captain D_ at MarForRes SJA (Telephone number deleted) to inquire about our ability to prosecute PFC H_ (Applicant) for Article 112a with the inconsistent SSN’s.  Captain D_ gave him a list of questions to ask PFC H_ (Applicant), such as when was he around the second hand smoke, how long did it last, who was there, who was smoking, etc.  Capt D_ also stated that he had discussed our case with the military trial counsel.  They decided that we could not proceed with a court-martial due to the fact that our SACO was not school trained, which could get the urinalysis thrown out; and second, that in direct questioning PFC H_ (Applicant) would answer, “No” to the question of his bottle SSN being his.  Capt D_ did state that we could proceed with NJP if PFC H_ (Applicant) did not object, whether or not he admitted use.  Capt D_ also stated that we could proceed with admin separation whether or not PFC H_ (Applicant) admitted use.  Capt D_ had wanted us to also charge PFC H_ (Applicant) with verifying an incorrect SSN, but we felt that the punitive and administrative actions resulting from wrongful use of marijuana to be sufficient.  With this guidance from Capt D_, it was decided to initiate NJP proceedings.
5.  lstSgt de H_ informed PFC H_ (Applicant) on 13 June 2001 of the Article ll2a. charge against him and that he had the right to remain silent and say nothing at all concerning the offense of which he is suspected.  SNM said that he understood this right.  lstSgt de H_ presented the evidence that we have in the form of our unit urinalysis logbook and the message from Great Lakes Drug Screening Lab that reports SNM’s specimen as testing positive for marijuana.  SNM has been advised of and understands his rights under Article 31, UCMJ.  SNM has also been advised of and understands his right to demand trial by court martial in lieu of non-judicial punishment.  SNM did not demand trial and accepted non-judicial punishment.  SNM further certified that he had been given the opportunity to consult with a military lawyer, provided at no expense to himself, prior to his decision to accept non-judicial punishment.  He expressed that he understood his right to refuse NJP, but chose not to exercise that right.  Since SNM accepted NJP, Major D_ conducted these proceedings on 13 June 01 as PFC H_ (Applicant) was a member of the I-I staff at the time.  SNM was charged with Article 112a of the UCMJ: Wrongful use, possession of a controlled substance, to wit: marijuana.  That on or about 29 May 2001, at Battery B, 1st Battalion, 14th  Marines, Joliet, IL, SNM did wrongfully use a controlled substance, to wit: marijuana.  When PFC H_ (Applicant) was asked what happened, SNM said that he was at a party where relatives were smoking marijuana and playing cards.  SNM stated that he did not smoke any marijuana during this party, and that he remained in this atmosphere for four hours taking in second hand smoke.  SNM did not attempt to remove himself from this situation.  When the issue of second hand smoke was brought up, lstSgt de H_ inquired from Mr. U_ the nanogram level of the positive sample (due to the Campbell ruling).  He stated he could not give that information over the phone or unsecure fax, and instructed us to fax a 'By direction’ letter requesting the level, and that he would FedEx the results to us.  The request was faxed on 8 June 2001 and the results were received on 13 June 2001.  PFC H_ (Applicant) had a nanogram level of 46.  PFC H_ (Applicant) had no other comments to make, nor any witnesses or other evidence to present.  Sgt M_ and lstSgt de H_ both made statements on behalf of SNM concerning his performance of duty.  After considering all of the testimony and evidence in this case, SNM was reduced to PFC and ordered that he forfeit $78.00 for one month.  His ADSW for funerals orders were also terminated effective 17 June 2001.  He was also informed that he would be processed for discharge from the USMCR under other than honorable circumstances in accordance with the USMC’s policy on drug use.  Major D_ told PFC H_ (Applicant) that he is to continue drilling with this unit until such time as his separation package is approved by Marine Forces Reserve.  SNM said that he understood this, and would do so.  As of the date of this letter, PFC H_ (Applicant) has not followed through on his word of continuing to drill with this unit, nor has he attempted to remain in a positive drilling status.
6.  Regardless of PFC H_'s (Applicant) duty status at the time of the use, using marijuana is inconsistent with the Marine’s obligation to be ready to mobilize at any time; it also lessens this command’s trust in the Marine and his performance and reliability.  Accordingly, we believe that other than honorable characterization is warranted under paragraph 1004.4e of reference (a)

011022:	SJA review determined the case sufficient in law and fact.

011022:	GCMCA [Commander, Marine Forces Reserve] 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 or about 20011022 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.  Drug abuse warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The Applicant’s positive urine sample, which he acknowledged was his sample, is a proper and equitable basis for his administrative separation despite the fact that the bottle had an incorrect social security number.  The improperly annotated social security number does not provide a basis for relief.  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