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

  ex-PFC, USMC
Docket No. MD03-01123

Applicant’s Request

The application for discharge review was received on 20030612.  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 listed American Legion as his representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 20040407.  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 at the time of issue.  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 did not intentionally use any illegal drugs.  That is my case.  I’d like the chance to prove this to the board personally.”

Documentation

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

Copies of DD Form 214 (3)
Letter from Applicant dated May 31, 2003
Letter from Applicant dated July 7, 2003 
Applicant’s statement (6 pp.)
Witness letter from M_ W_ (3 pp.)
Letter of recommendation from D_ J. F_
Letter of recommendation from S_ L. H_
Two Employee evaluation comment cards
Letter of recommendation from Cpl. D_ A_
Letter of recommendation from D_ A_
Two copies of photos

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980928 - 981018	COG

Period of Service Under Review:

Date of Enlistment:  981019		Date of Discharge:  011026

Length of Service (years, months, days):

	Active:    03  00  08
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  59

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (9)			Conduct:  3.7 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, GCM

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:

001219:	Counseled for deficiencies in performance and conduct.  [Having a crossbow and seven darts found in your barracks room during a search and seizure inspection.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010403:	NAVDRUGLAB [SAN DIEGO, CA], reported Applicant’s urine sample, received 010329, tested positive for [amphetamine/methamphetamine].

010907:	Applicant refused medical officer’s evaluation for drug dependency.

010920:	Applicant signed an agreement to waive any administrative discharge board concerning pending special court martial for a suspected violation of 112a: wrongful use of methamphetamine between 010319 and 010326 providing convening authority agrees to withdraw charge against him.  Agreement approved.
 
011003:	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 wrongful use of methamphetamine as confirmed by NAVDRUGLAB msg date R 032227Z Apr 01 ZYB PSN 759355F34, Lab Batch S0103602054 M622/05. 

011010:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

011010:	Applicant advised of his rights and having consulted 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.

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

011023:	GCMCA [Commanding General, 1st Marine Division (Rein)] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

030515:	NDRB documentary record review Docket Number MD02-00921 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011026 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.  The statements and documentation provided by the Applicant did not refute this presumption.  Drug abuse warranted processing for separation.  The conduct of a unit urinalysis uses redundant means of accounting for and verifying test samples.  The illegible SSN on the Applicant’s urine sample does not, as a single discrepancy, void his urine sample as credible evidence that the Applicant used illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The Board discerned no impropriety or inequity concerning the Applicant’s rights regarding possible disciplinary action and his rights regarding his administrative separation.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  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.

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