ex-PFC, USMC
MD06-00903

Current Discharge and Applicant’s Request:

Application Received:  				20060623     
Narrative Reason for Separation:			MISCONDUCT
Character of Service:				
Discharge Authority:				MARCORSEPMAN PAR 6210.5
Last Duty Assignment/Command at Discharge:	3dBN 8THMAR 2DMARDIV CAMLEJ NC

Applicant’s Request:
	Narrative Reason change to: 		NONE REQUESTED
	Characterization change to:		
	Review Requested:			
Representation:  					

Decision:

Date of Decision:					20070517     
The Discharge shall remain:			
						MISCONDUCT
Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

Vote (characterization/reason)			/ 
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Discharge Package Complete:			

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				19990322-19991004
Active:        		               		NONE

Period of Service Under Review:
Date of Enlistment:  				19991005
Years Contracted:  				;        
Date of Discharge:				20020308
Length of Service:				02  Yrs  05  Mths  04  Dys
Time Lost During This Period:			24 days
	UA:  	Confinement: 24 days  
			
Education Level:  				
Age at this Enlistment:  				
AFQT:  						34
MOS:						0311
Highest Rate/Rank:				LCpl

Proficiency / Conduct: (number of marks):		4.2 (7)/4.1 (7)
	
Awards and Decorations (as listed on the DD Form 214):  Sea Service Deployment Ribbon, Rifle Marksman Badge

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19990310:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs. 

20000905:	NJP for violation(s) of UCMJ:
	Article 86:  Absent without authority 1201, 000829, to 1800, 000829.
	Award:  Forfeiture of $273 for 1 month (suspended for 3 months), restriction and extra duty for 14 days (7 days extra duty suspended for 3 months).
   	Not appealed. 

20011019:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20011016, tested positive for THC.

20011023:	Summary Court-Martial.
	Charge: Violation of the UCMJ, Article 112a.  Finding: Guilty.
	Sentence: Confinement for 30 days, forfeiture of $779.00, reduction to E-2.
	CA action 20011030:  Sentence approved and ordered executed.

20011205:	Clinical Director, Alcohol Treatment Facility, Navy Hospital, Camp Lejeune Substance Abuse Evaluation Report: Drug and alcohol dependence.  Recommended service member be processed for administrative separation.  Recommended that individual be referred for alcohol and drug treatment.

20011205:	Applicant refused substance abuse treatment.  Counseled in regards to treatment at Veteran’s Administration Hospital (VAH) and provided address of VAH nearest residence upon discharge.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

None.

Elements of Discharge: 

Discharge Process:				Administrative Board Procedure
Date Notified:					20011221
					Basis:	MISCONDUCT
					due to:	
						
Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	
Record Supports Narrative Reason:			

Date Applicant Responded to Notification:		20011221
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s)			

Board Date:					NOT APPLICABLE
Finding of Administrative Board:			NOT APPLICABLE  
Recommendation of Commanding Officer (date):	20011228       

SJA review (date):				20020227       
Separation Authority (date):			CG, 4th Marine Expeditionary Brigade (AT) (20020227)
Basis directed:					MISCONDUCT due to drug abuse
Characterization of directed:			 
Date Applicant Discharged:			20020308 

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service:
	Service/Medical Record:				2
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		1
        Other Documentation	 (Describe Below)		2

        Total Number of Pages:				5

       Description of Other Documentation:
            Representative Statement

Discussion of Discharge Review

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Applicant’s Issues, as summarized by the Board:
1.  Desire change to RE Code in order to re-enlist.
2.  Drug users with test results below DoD cut-off levels are not discharged. 
3.  Per representative, small amount of drugs in system did not warrant severity of punishment and discharge.
4.  Per representative, post-service conduct.

Issue 1. The Board determined that  which can form the basis of relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding this Issue.  

Applicant’s Decisional Issues:
Issue 2 (Equity).  The Applicant appears to argue that it was inequitable to discharge him per the zero tolerance policy when others may be identified with drugs and/or metabolites in their urine but whose use is tolerated, i.e. they are not be considered positive for use because the amounts detected are below DoD minimum levels.  The Applicant confuses the Marine Corps zero tolerance policy, which requires that Commanders process identified illegal drug users for administrative separation, with the urinalysis results, which is one method available to identify those who use illegal drugs.  The cut-off levels are established in order to be certain that the substances detected are present due to actual knowing use.  In the Applicant’s case, the amount of THC detected in his system was over the DoD limit, and sufficient to demonstrate his knowing use of marijuana.  The Applicant does not deny such use.  Therefore, relief is denied on this issue. 

Issue 3 (Equity).  There is credible evidence in the record that the Applicant used illegal drugs, a violation of UCMJ, Article 112a.  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 Applicant refused treatment, and the Board found no indication in the record that he was inequitably or improperly denied treatment or coerced into refusing it.  The Board advises the Applicant that violation of Article 112a is considered a serious offense for which a punitive discharge is authorized at special or general court-martial.  In addition, the Applicant’s service was marred by nonjudicial punishment for violation of UCMJ, Article 86.  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.

Issue 4 (Equity).  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.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.

Pertinent Regulation/Law

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 II, Para 211, Regularity of Government Affairs,  Part V, Para 502, Propriety  and  Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a, Wrongful use, possession, etc. of controlled substances.