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

 ex-Pvt, USMC
Docket No. MD03-01419

Applicant’s Request

The application for discharge review was received on 20030827.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20040608.  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 the respected members of the discharge review board,
this letter pertains to item 8 of DD form 293 and is the explanation of the “issues”  that I believe directly effect my request for a upgrade of discharge.
In July of 2000 I recieved an other than honorable discharge from the United States Marine Corps for misconduct due to drug abuse. I was tested positive once for use of methamphetamines. I believe my discharge was improper due to the fact that it was based on an isolated incident. Other issues that I would like to be addressed are the facts that I served 29 months of service honorably as well as my actions and assistance to the Naval Criminal Investigative Service before, during, and after my positive urinalysis, summery court martial, and completion of sentence. One last issue that I would like to bring to the attention of this board is the fact that before I was processed for discharge I was questioned by my battalion commander. The formal conversation that persued questioned whether I wanted to continue my military career even though the Marine Corps has a zero tolerance policy on drug use.”

Documentation

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

Applicant’s DD Form 214
Applicant's statement, undated
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)		980211		COG

Period of Service Under Review:

Date of Enlistment:  980212		Date of Discharge:  000721

Length of Service (years, months, days):

	Active:    02  05  10
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  10			AFQT:  58

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.2 (8)			Conduct:  2.8 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  MM

Days of Unauthorized Absence:  29

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:

980205:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

980624:	Counseled for deficiencies in performance and conduct.  [Your failure to be at your appointed place of duty, Drivers Improvement Course formation at 0730 on 980620.  Conduct of this nature and disregard for military orders and regulation will not be tolerated.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990726:	Applicant directed to report to Alcohol Treatment Facility on 990728 for an evaluation scheduled by the Battalion Substance Abuse Control Officer.

990728:	Medical evaluation for drug abuse found the Applicant to be drug dependent.  

990729:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 990709, tested positive for amphetamine/methamphetamine.

000120:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 112A:
	Specification: Wrongfully use amphetamine/methamphetamine, a schedule 1 controlled substance.
	Finding: to Charge I and the specification thereunder, guilty.
	Sentence: Forfeiture of $670.00, confinement for 29 days, reduction to Pvt.
	CA action 000206:  Sentence approved and ordered executed.

000406:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence from 0630, 991206 to 0700, 000105 (29 days/surrendered).
	Finding: to Charge I and the specification thereunder, guilty.
	Sentence: Forfeiture of $670.00, hard labor for 45 days, restriction for 60 days.
	CA action 000406:  Sentence approved and ordered executed except for that portion of the punishment adjudging forfeiture of $670.00 which is suspended for 6 months.

000515:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000515:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

000515:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was Applicant's illegal use of amphetamine/methamphetamine.  

000620:	Clinical Psychologist evaluation: Diagnosis: Axis I: (1) Polysubstance abuse, in remission, (2) Adjustment disorder with mixed emotional features.  Axis II: Personality disorder NOS.  Recommendation: Expeditious separation.

000628:	SJA review determined the case sufficient in law and fact.

000711:	Counseling regarding right to receive treatment prior to being discharged.  Applicant choose to waive right for treatment for drug dependency.  Applicant informed of VA treatment.

000714:	GCMCA [Commander, 2d Force Service Support Group] 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 20000721 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 evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  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