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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD05-01532

Applicant’s Request

The application for discharge review was received on 20050914. 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 did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060530.  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:

“Issue 1: I believe my discharge was improper because it was based on one incident on drug abuse where there was no conviction, and the charges were dismissed before it even went to a court martial.

Issue 2:  Before separation, I stood before an Administration Separation Board who then recommended the discharge be waived.”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
Two pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19980630 - 19980809	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19980810		Date of Discharge:  20020522

Length of Service (years, months, days):

Active:    03  09  13
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  58

Highest Rank:  LCpl				MOS:  2141

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (9)				Conduct:  4.0 (9)

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

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:

970722:	Pre-service waiver for asthma granted.

980622:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

991025:	NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 991015, tested positive for THC.

991029:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
	In that Private First Class M_ P. K_(Applicant), Charlie Company, 2d Assault Amphibian Battalion, 2d Marine Division, did, on or before 12 Oct 99, wrongfully use a controlled substance, specifically marijuana (THC).  Award:  Forfeiture of $537 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Forfeiture suspended for 1 month.  Not appealed.

991101:	Counseling:  Advised of deficiencies in performance and conduct (SNM failed a drug screening test.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991130:	Substance Abuse Evaluation:  Drug abuse, isolated incident.

991130:	Applicant acknowledged Statement of Understanding of treatment for substance abuse at a VA Medical Center.

000303:	GCMCA, 2d Marine Division II Marine Expeditionary Force directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse and recommends discharge be suspended for a period of 12 months.

001108:	NAVDRUGLAB, Jacksonsville, FL reported Applicant’s urine sample, received 001030, tested positive for cocaine.

001213:	Substance Abuse Evaluation:  Diagnosis:  Drug abuse (isolated incident).

001213:	Applicant acknowledged Statement of Understanding of treatment for substance abuse at a VA Medical Center.

010323:	Applicant on unauthorized absence from 0700 to 0930, 010323.

010418:	NJP for violation of UCMJ, Article 86: Absence from unit, organization, or place of duty.
	In that Lance Corporal M_ P. K_, did, on or about 0700, 23 Mar 01, without authority, absent himself from his place of duty at which he was required to be, to wit: BB 5, located at Court House Bay, Camp Lejeune, NC, and did remain so absent until on or about 0930, 23 Mar 01.
	Award:  Forfeiture of $304 per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

010510:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of June because of pending special court martial.  Applicant chose not to make a statement.

010604:	Counseling:  Advised of deficiencies in performance and conduct (SNM failed a drug screening test on two separate occasions.  SNM counseled on this matter after the first incident and received NJP.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010607:	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.  

010607:	Commanding Officer, 2d Assault Amphibian Battalion recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was SNM’s violating Article 112a: Wrongful use of a controlled substance specifically (cocaine), and Battalion Level NJP for his previous violation of Article 112a:  Wrongful use of a controlled substance specifically marijuana (THC)

010608:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

020227:	An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that such misconduct warranted separation other than honorable, and recommended discharge be suspended until SNM’s EAS of 9 August 2002.

020417:	Commanding Officer, 2d Assault Amphibian Battalion recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due drug abuse.  Commanding Officer’s comments:  “I concur with the board’s findings and recommendation that Lance Corporal K_(Applicant) be separated with an under other than honorable characterization of discharge.  However, I do not concur with the recommendation that his separation be suspended until his EAS of 9 August 2002.  Lance Corporal K_(Applicant) tested positive for cocaine while under a suspended OTH discharge signed by General B_ on 28 September 2001.  Despite his otherwise good conduct he is not deserving of an honorable discharge at this time, nor should he be afforded yet another opportunity to earn one.”

020509:	SJA review determined the case sufficient in law and fact.

020509:	GCMCA, 2d Marine Division, II Marine Expeditionary Force 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 20020522 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).  

The Applicant states his discharge was based on one incident of drug abuse and the charges were dismissed before they went to court martial. The NDRB advises the Applicant that despite a servicemember’s prior record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of two nonjudicial punishments (NJP) for violations of Article 112a (illegal drug use) and 86 (unauthorized absence), thus substantiating the misconduct for which he was separated. The Applicant erroneously states that the charges were dismissed. The evidence of record shows that on 19991029 the Applicant received NJP for illegal use of THC and received a discharge warning. On 200003** the GCMCA, 2nd Marine Division II Marine Expeditionary Force suspended the under other than honorable discharge for a period of twelve months. The suspension agreement stated that if the Applicant refrained from further misconduct for one year, he would be eligible for an honorable discharge. If misconduct were committed during the suspension period, vacation proceedings would be initiated. Subsequent to that decision, seven months later, on 20001030, the Applicant tested positive for cocaine. This positive urinalysis negated the terms of his suspension for the previous 112a violation and initiated the separation process. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. The Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

The Applicant contends that an administrative separation board recommended the discharge be waived. The NDRB advises the Applicant that an administrative separation 
Board recommendations are not binding on a Commanding officer. In the Applicant’s case, the commanding officer concurred with the findings of guilt and recommendation to separate the Applicant with an under other than honorable characterization of discharge. However he did not concur with the Board’s recommendation, for suspension of the discharge, therefore he recommended the to the separating authority that the discharge be executed, and GCMCA, 2d Marine Division, II Marine Expeditionary Force directed it.

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 sufficient 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 additional evidence related to this discharge.  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