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

FOR OFFICIAL USE ONLY

 ex-LCPL, USMC
Docket No. MD05-01063

Applicant’s Request

The application for discharge review was received on 20050524.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051117..  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 by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Honorable or General under honorable conditions.
I was randomly selected for a drug test + showed positive for this test.  I had experienced drugs but I was never an avid user.  I was away from home Thanksgiving 2002 and I was at a friend’s house and smoked a joint with my friends.  A couple days later that was when I was randomly selected for the drug test.  I was feeling very depressed and homesick at this time, otherwise I would have never smoked marijuana.  Since leaving the service I now live in Colorado.  I have an excellent job as a cable technician established myself with the community.  I have good credit, I own my own house, and lead a steady and stable life.”

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 (DEP)	19991103 – 20000130		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000131		Date of Discharge:  20030509

Length of Service (years, months, days):

Active:    03  03  09 
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  21

Years Contracted:  4 

Education Level:  12				AFQT:  55

Highest Rank:  CPL				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 			Conduct:  4.1 [Extracted from CO’s letter dtd 030318] 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  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:

990103:	Pre-service waiver for drugs granted.

991101:	Applicant briefed on and certified understanding of Marine Corps policy 
concerning illegal use of drugs.

021216:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 021211, tested positive for THC.

030113:	Counseling:  Advised of deficiencies in performance and conduct (Illegal drug involvement-marijuana (THC) usage on 11 Dec 02, as identified through urinalysis, and confirmed by NavDrugLab San Diego msg #162349Z DEC 02), necessary corrective actions explained, sources of assistance provided. Advised that processing for administrative separation for misconduct is mandatory per MCO P1900.16E.

030115:	NJP for violation of UCMJ, Article 112a: On or about 11 December 02, Cpl J_ tested positive on a urinalysis for THC.
Award:  Forfeiture of $678 per month for 2 months, restriction and extra duty for 30 days, reduction to E-3.  Not appealed.

030121:	Substance Abuse Rehabilitation Program Department (SARPD), Camp Pendleton, CA, Client Legal Referral Statement.  Applicant had been referred to SARPD by Medical Officer.  Applicant request to seek legal counsel prior to evaluation.  Applicant referred to legal and Command will reschedule the SARPD evaluation after legal appointment.  

030205:	Applicant referred by CSACC to Substance Abuse Rehabilitation Department addictions consultation for drugs.  Impression:  cannabis abuse. 
	Recommendation: MDAC.

030221:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of drug abuse.  The factual basis for this recommendation: the Applicant’s positive urinalysis results. 

030221:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

030318:	Commanding Officer, Battalion Landing Team 1/1, 13th MEU, recommended Applicant’s discharge under other than honorable conditions by reason of drug abuse.

030417:	SJA review determined the case sufficient in law and fact.

030417:	GCMCA, Commander, Marine Corps Base, Camp Pendleton, 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 20030509 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions.  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 (B and C).  

There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for Marines who abuse illegal drugs.  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.

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by a nonjudicial punishment proceeding for violation of Articles 112a (wrongful use of controlled substances) of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 
01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy 	Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023