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

,  ex-Pvt, USMC
Docket No. MD03-01333

Applicant’s Request

The application for discharge review was received on 20030805.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record 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 20040526.  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.  “To whom it may concern,
My name is R_ B_ W_ (Applicant) In 2001, I was released from the US Marine Corps for wrongful use (THC) knowing the USMC has a 0% tolerance for the use of drugs.  I relized I did something that made a bad note in life that is continuing to hurt me like finding a better job, and buying a house; however Im not complaing, because I did this to myself and no one else.  Im also aware that I can only receive a general discharge for this form I R_ B_ W_ do apaligize for disobeying a lawful order by useing (THC).  I’ve been a Red lobster for two years and working on finishing my degree in recording engineering.  If their is any way I could get my discharge upgraded it would be a help to what Im trying to complete in my life better.  Thanks”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		960830 - 960908	COG
	Active:   USMCR		960909 - 970222	HON/IADT
	Inactive: USMCR		970223 - 971007	HON

Period of Service Under Review:

Date of Enlistment:  971008*	Date of Discharge:  010309

Length of Service (years, months, days):

	Active:    03  05  02
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  36

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (10)			Conduct:  3.8 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  Letter of Appreciation, Certificate of Commendation, SSDR, HSM, JMUA

Days of Unauthorized Absence:  None

*Second enlistment contract not found in service record.  Information extracted from Page 11.

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:

971008:	Applicant reenlisted for 4 years and appointed to PFC.

980323:	Counseled for deficiencies in performance and conduct.  [Specifically, on 980321 at MCD Fort Lee, VA for receiving a citation for driving with an expired license.  Not knowing the students are not allowed to have POV’s while assigned to Fort Lee.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990614:	Counseled for deficiencies in performance and conduct.  [Defaulting on my personnel financial obligations and missing a set Dental appointment.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991222:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 991217, tested positive for THC.

000114:	Medical evaluation for drug abuse found the Applicant to be a drug abuser (isolated incident).  

000120:	Applicant signed statement of understanding of treatment for alcohol/substance dependence at a Veterans Administration Medical Center.  Applicant is not requesting treatment in conjunction with discharge.

000120:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement, to wit: usage of THC identified through urinalysis testing, via NAVDRUGLAB JACKSONVILLE FL messages R222025Z DEC 99.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000425:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 000420, tested positive for THC.

000508:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 000501, tested positive for THC.

000524:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 92:
	Specification: Violate MCO P1020.34F as amended by MCBul 1020.35, by wrongfully wearing an earring in his ear.
	Charge II: violation of the UCMJ, Article 112A (2 specs):
	Specification 1: Wrongfully used marijuana between 991201 and 991215.
	Specification 2: Wrongfully used marijuana between 000403 and 000417.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence: Hard Labor without confinement for 45 days, restriction for 60 days, reduction to Pvt.
	CA action 000602: Sentence approved and ordered executed.

000714:	Applicant signed statement of understanding of treatment for alcohol/substance dependence at a Veterans Administration Medical Center.  Applicant is not requesting treatment in conjunction with discharge.

000714:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement, to wit: usage of THC identified through urinalysis testing, via NAVDRUGLAB JACKSONVILLE FL messages R082346Z MAY 00.]

000721:	NJP for violation of UCMJ, Article 92 (2 specs):
Specification 1: Violate the terms of restriction issued by LtCol on 000629.
Specification 2: Violate the terms of restriction issued by LtCol on 000710.
Awarded forfeiture of $502.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

000814:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

010123:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010130:	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 illegal drug use as evidenced by NAVDRUGLAB JACKSONVILLE FL msg 222025Z DEC 99, NAVDRUGLAB JACKSONVILLE FL msg 252203Z APR 00, and NAVDRUGLAB JACKSONVILLE FL msg 082345Z MAY00.  

010208:	SJA review determined the case sufficient in law and fact.

010212:	GCMCA [Commander, 2nd Force Service Support Group, Camp Lejeune, NC] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PARTIAL DISCHARGE PACKAGE

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010309 under other than honorable conditions for misconduct due to drug abuse (A).  In the absence of a complete discharge package, the Board presumed regularity in the conduct of governmental affairs (B) and, after a thorough review of the records, supporting documents, facts, and circumstances unique to this case, 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 Applicant tested positive for THC on three separate occasions.  Drug abuse warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  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, to enhance employment opportunities, or for 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