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

FOR OFFICIAL USE ONLY

ex-LCPL, USMC
Docket No. MD05-01353

Applicant’s Request

The application for discharge review was received on 20050802.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant designated civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060427.  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 to the Board:

“I was discharged for failing a drug test that was taken October 11, 2000.  On the log sheet, a copy of which is attached, I signed the day the test was taken, I stated I was taking androstenedione.  This was a supplement sold by the Military Base Exchange and was not an illegal substance at that time and was not illegally obtained.  The attached letter from AAFES confirms that in the year 2000 androstenedione was sold in the direct store operations.  Not until 2002 were these products phased out.  I received many certificates of completion and awards while in the service, and was promoted to Corporal, October 1, 2000.  Since leaving the Corps, I have continued schooling, receiving Dean’s List Honors, election into the National College Honor Scholarship Society, Excellence in Scholarship Certificate and ultimately a Bachelor of Arts Communication Degree, Magna Cum Laude, from the University of Texas at Arlington.  (copies of all attached)

I wish to have my discharge upgraded to Honorable, as I was taking substances that were legally obtained from the base exchange and not banned until the year 2002.  I wish to be eligible to reenlist in the Marine Corps if I so choose.”

Documentation

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

Applicant’s DD Form 214  (Member 4)
Ltr from AAFES General Counsel Office, dtd January 24, 2005
Ltr from 1ST MAW FOIA SNCOIC, 1st MAW, dtd January 12, 2005  (3 pages)
Drug Testing Report DOD888, dtd December 6, 2000
Applicant’s Document Listing (2 pages)
Ltr from R. L. W_, Lieutenant Colonel, USMC, dtd July 2, 1999
High Shooter Certificate, dtd July 2, 1999
Marine Combat Training certificate, dtd August 13, 1999
Meritorious Mast certificate, dtd September 2nd 1999
Promotion Warrant, dtd December 1, 1999
Air Control Electronics Operator Course certificate, dtd April 6, 2000
Warrior Award, dtd April 6, 2000
6 certificates and 6 letters for Marine Corps Institute courses, dtd June-July 2000
Range Coach and PMI course certificate, dtd July 28, 2000  (2pages)
Monitor Survey/Decontamination/M17 Licensing course certificate, dtd June 9, 2000  (2 pages)
Promotion Warrant, dtd October 1, 2000
ACEOCI-00 Course roster with scores
Honors program certificate, dtd Spring 2003
Ltr from The University of Texas at Arlington, H_ C. G_, Director, Office of Admissions, dtd March 27, 2005
Ltr from The University of Texas at Arlington, H_ C. G_, Director, Office of Admissions, dtd March 1, 2004 (2 pages)
Ltr from The National Society of Collegiate scholars, dtd October 26, 2006
Certificate from the National Society of Collegiate Scholars, dtd April 30, 2004
Recognition of Superior Academic Achievement from The University Of Texas at Arlington, dtd Fall Semester 2004
Recognition of Superior Academic Achievement from The University Of Texas at Arlington, dtd Spring Semester 2005
Academic Excellence Recognition from Texas Alpha Theta Chapter of Alpha Chi, undated
Certificate of election to the Alpha Chi National College Honor Scholarship
Society, dtd February 22, 2005
Certificate of Membership from Department of Communication 2005 Honor Society, dtd April 20, 2005
Certificate of Membership, Kappa Tau Alpha Charles Arrendell Chapter, University of Texas at Arlington, dtd April 20, 2005
Applicant’s transcript from the University of Texas at Arlington, dtd May 14, 2005
Applicant’s certificate of Degree in Bachelor of Arts in Communications Journalism, dtd May 14, 2005
Ltr from W_ B_ & W_, LLP Attorneys and Counselors, dtd October 27, 2005
Letter regarding Public Information Request from City of Dallas, Open Records Unit, Records Section, Administrative and Support Bureau, dtd September 16, 2005
Ltr from W_ B_ & W_, LLP Attorneys and Counselors, dtd August 31, 2005
Ltr from Texas Department of Public Safety driver Records Bureau, dtd July 12, 2005
Ltr from Dallas County Sheriff’s Department, G_ L_, Chief Deputy, dtd October 17, 2005
Character Reference ltr from J_ M_, dtd October 22, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19990317 – 19990328		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990329		Date of Discharge:  20010227

Length of Service (years, months, days):

Active:    01  10  29  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  26

Years Contracted:  4 

Education Level:  13				AFQT:  72

Highest Rank:  Cpl				MOS:  7234

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (6)				Conduct:  4.4 (6)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Navy Unit Commendation, Meritorious Mast, Rifle Expert Badge (2nd Award)

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:

990316:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

990317:	Applicant issued RS-level enlistment waiver for marijuana use.

001020:	NJP for violation of UCMJ, Article 112a:
Specification:  Possession of a controlled substance.
	Award:  Forfeiture of $400.00 per month for 2 months (suspended for 3 months), restriction and extra duty for 45 days, reduction to E-3.  Not appealed.

001106:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.  

001106:	Commanding Officer, Marine Air Control Squadron 4, recommended to Commanding General, 1st Marine Aircraft Wing, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis of the recommendation is as follows:  On 10 October 2000, LCpl H_ [Applicant] was implicated by his roommate for possessing and using a controlled substance.  He was present during the permissive search of his room by the MACS-4 SDO, PMO an CID and upon discovery of additional paraphernalia, he continued to deny involvement.  He later admitted culpability.  The following day, more paraphernalia was found hidden in the adjoining room and he ultimately admitted that it was his.  Shortly thereafter, he requested to speak with the Sergeant Major concerning the allegations.  The Sergeant Major requested that NCIS/CID be present and he agreed.  He had paperwork with him that he said was relevant to the case.  When a permissive search of his person was requested, he refused and a command directed search was conducted.  The Agent confiscated paperwork detailing addresses, account numbers and procedures to order steroids.  There is an ongoing investigation which has not been completed.  Lance Corporal H_ voluntarily provided a urine specimen that was forwarded to the UCLA Drug Lab for steroid screening.  Lance Corporal H_ and his roommate were found guilty at CO’s NJP for violation of Article 112A, Possession of a Controlled Substance.

001106:	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.

001205:	Counseling:  Advised of deficiencies in performance and conduct (Wrongful possession and use of a controlled substance, specifically the possession and use of steroids on or about 2000 Oct 10), necessary corrective actions explained, sources of assistance provided and disciplinary and discharge warning issued.

001206:	UCLA Olympic Analytical Laboratory findings:  Sample contains 19-norandrosterone and 19-noretiocholandolone.  These substances are metabolites of the anabolic androgenic steroid nandrolone.  They might also be found in urine after administration of dietary supplements such as 19-norandrostenedione.  [Document provided by Applicant]

010108:	Alcohol Rehabilitation Department:  Applicant denied current illegal drug use.  Assessment:  AXIS I:  Diagnosis deferred.  AXIS II:  Diagnosis deferred.  AXIS III:  None noted.  Plan:  Recommend Applicant be processed for administrative separation for illicit drug use.  

010108:	United States Naval Hospital, Alcohol Rehabilitation Department advised 
the Substance Abuse Control Officer (SACO), Marine Air Control Squadron Four that the Applicant was evaluated on 08 January 2001 by a Substance Abuse Counselor and the preliminary results as follows:
a.  SNM does not reveal any patterns of drug abuse or dependence.  
     Therefore, SNM does not need treatment for drug abuse.
b.  In accordance with the above references, SNM should be 
     Administratively Separated from the USMC for illicit drug use.
c.  SNM should maintain weekly meetings with command SACO.
d.  SNM performance should be monitored and re-evaluated and any 
     further incidents should be handled in accordance with above 
     references.

010123:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Applicant informed the least favorable characterization of service possible as under other than honorable conditions.

010124:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

010125:	Commanding Officer, Marine Air Control Squadron 4, recommended to Commanding General, 1st Marine Aircraft Wing, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the Applicant’s wrongful use and possession of anabolic steroids on numerous occasions between March 2000 and 12 October 2000, to include possessing drug paraphernalia (syringes), as evidenced by CID, Report of Investigation dated 15 November 2000 (CCN# 10OCT-401KI-02630-7NMA/F).  

010130:	Commanding Officer, Marine Air Control Group 18, recommended that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.

010201:	SJA review determined the case sufficient in law and fact.

010205:	Commanding General, 1st Marine Aircraft Wing, advised the Commandant of the Marine Corps (MMSB) that the Applicant will be discharged under other than honorable by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010227 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).  

When a Marine’s service 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 nonjudicial punishment proceedings for violating Article 112a of the UCMJ.  The Applicant’s conduct is considered a violation of the special consideration given the Applicant at the time of his waivered enlistment.  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 Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant implies that his discharge is inequitable because he did not use any illegal substances and that his positive urinalysis was the result of the Applicant’s legal use of a product which, at the time, was available at “AAFES.”  The evidence of record shows:
•	The Applicant was implicated by his roommate for use of a controlled substance. 
•	A search of the Applicant’s room revealed drug paraphernalia.
•	A search of the Applicant’s person revealed “paperwork detailing addresses, account numbers and procedures to order steroids.”
•	The Applicant was awarded nonjudicial punishment for violating Article 112a of the UMCJ.
Therefore, the Board found 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.  Neither the evidence of record nor the documents provided by the Applicant 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 implies that his discharge is inequitable because of his “certificates of completion and awards” and because he was promoted to corporal.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

The Applicant implies that his discharge should be upgraded due to his post-service conduct.  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.  The Board applauds the Applicant’s post-service educational achievements and certification of non-involvement with civil authorities.  However, the Applicant failed to include sufficient documentation regarding community service, volunteer efforts or credible evidence of a substance free lifestyle.  Therefore, the Board determined the Applicant has not provided sufficient post-service documentation for the Board to consider.  Relief denied on this basis is 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.  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 31 August 2001.

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