ex-PFC, USMC
MD06-00972

Current Discharge and Applicant’s Request:

Application Received:  				20060713
Narrative Reason for Separation:			misconduct
Character of Service:				
Discharge Authority:				MARCORSEPMAN 6210.5
Last Duty Assignment/Command at Discharge:	1ST BN 7TH MAR MAGTFTC TWENTYNINE PALMS CA

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

Decision:

Date of Decision:					20070523
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)				19981106 - 19981116
Active:   None
Period of Service Under Review:
Date of Enlistment:  				19981117
Years Contracted:  				;  
Date of Discharge:				20010516
Length of Service:				02  Yrs  06  Mos  00  Days
Time Lost During This Period:			 23
			
Education Level:  				
Age at this Enlistment:  				
AFQT:  						38
MOS:						0331
Highest Rate/Rank:				LCpl

Performance Evaluation Averages (number of marks):
Proficiency / Conduct:			4.3 (6)	4.1 (6)

Awards and Decorations (as listed on the DD Form 214):  RIFLE EXPERT BADGE, PISTOL SHARPSHOOTER BADGE, NAVY AND MARINE CORPS OVERSEAS SERVICE RIBBON, ARMED FORCES EXPEDITIONARY MEDAL, CERTIFICATE OF COMMENDATION, LETTER OF COMMENDATION, MERITORIOUS MAST

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

19981105:	Applicant certified understanding of Marine Corps policy on illegal drug use.

19981106:	Applicant received waiver for pre-service drug use.

20001109:	Message, DTG 092128Z Nov 00 identified Applicant as testing positive for THC from urinalysis.
	[Extracted from Commanding Officer, 1st Battalion, 7th Marines letter dated 20010403.]

20010215:	Summary Court-Martial.
	Charge: Violation of the UCMJ, Article 112a:
	Specification:  Wrongful use of marijuana on or about 20001030.
	Finding: To Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $400.00, confinement for 28 days, reduction to E-2.
	CA action 20010216:  Sentence approved and ordered executed.

20010216:	Applicant found fit for confinement.

20010216:	Applicant to confinement at Base Brig, MCB, Camp Pendleton, CA.

20010310:	Applicant from confinement (23 days).

20010330:	Counseled concerning positive urinalysis of marijuana (THC), identified by Naval Drug Message 092128Z Nov 00.), disciplinary warning issued, necessary corrective actions explained and advised being processed for administrative separation.

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

20010222:	Applicant refused Medical Officer’s evaluation.

Elements of Discharge:  

Discharge Process:				ADMINISTRATIVE BOARD PROCEDURES
Date Notified:					20010403
Basis:						MISCONDUCT DUE TO 
Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	
Record Supports Narrative Reason:			

Date Applicant Responded to Notification:		20010403
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):	  (20010403)
SJA review (date):				  20010504
Separation Authority (date):			COMMANDER, 1ST MARINE DIVISION (REIN) (20010504)
Narrative reason directed:				MISCONDUCT
Characterization of directed:			
Date Applicant Discharged:			20010516 

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:				4
	Other Period of Service:			             17
       Related to Post-Service Period:
	Community Service:				0
	Education:					1
	Employment:					4
	Health/Medical:					0
	Character Statements:				8
	Criminal Records Checks:				2
	Additional Statements from Applicant:		3
        Other Documentation	 (Describe Below)		1

        Total Number of Pages:			             40

       Description of Other Documentation:  Applicant's certificate of birth

 Applicant’s Issues, as summarized by the Board:
1.  Employment opportunities.
2.  Should never have been discharged.
3.  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.  

Decisional Issues:
The Board accepted Issue(s) 2 and 3 for consideration.  

Issue 2 (Propriety/Equity).  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 Applicant does not offer any reason or evidence as to why he should not have been discharged.  The NDRB advises the Applicant that illegal drug use is a violation of the UCMJ, Article 112a, and is considered a serious offense for which a punitive discharge is authorized if adjudged at a special or general court-martial.  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 3 (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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.  Relief denied.

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.

Minority Opinion

None.

Pertinent Regulation/Law

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 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.