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

  

ex-PFC, USMC
Docket No. MD04-00713

Applicant’s Request

The application for discharge review was received on 20040325.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “not misconduct.”  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041015.  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 and narrative reason of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“The discharge was inequitable because 

Issue # 1 I was initially charged with use of LSD while on active duty-sufficient evidence did not exist to support this and the special court martial was subsequently dismissed.

Issue # 2 No evidence of misconduct or willful use of drugs was presented at my sepration board

Issue # 3 With the exception of 1 entry on my page 11 in my SRB involving a shirt my service record is quite good and I was considered an asset to my organization.

Issue # 4 Evidence presented at my sepration Board included incidents that occurred prior to my enlistment some occurred while I was a minor and all were disclosed prior to enlistment.

Issue # 5 I maintain that I never used any illegal drugs while enlisted in the USMC

Issue # 6 An incident occurred involving SgtMaj M_ (Base SgtMaj) and a tshirt he found offensive.  It caused numerous problems and I feel it was partially the reason the command would not stop until I wa separated from the Marine Corps.”

Documentation

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

E-mail, dated September 21, 1999
Charge sheet, dated June 22, 1999
Statement from Applicant, undated, unsigned
NAMVC 118(11), Administrative Remarks, dated September 24, 1999
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		970915 - 980816	COG

Period of Service Under Review:

Date of Enlistment:  980817		Date of Discharge:  000204

Length of Service (years, months, days):

	Active:    01  05  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  5

Education Level:  12			AFQT:  21/42

Highest Rank:  PFC			MOS:  6132

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (3)			Conduct:  3.8 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  CoC, LoA (2)

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MARCORSEPMAN 6210.5.

Chronological Listing of Significant Service Events:

970914:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

970915:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver granted.

990421:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 990415, tested positive for lysergic acid diethylamide.

990924:	Counseled for deficiencies in performance and conduct.  [Misconduct.  Specifically my wearing of a shirt that was offensive, degrading and violent in nature that promoted hate towards others.  This shirt was not keeping within the rules and regulations that govern the good order and discipline of the Armed Forces and the standards of the Marine Corps.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

UNDATED:	Statement from Applicant regarding counseling received 990924.

991109:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

991109:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

991111:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your wrongful use of lysergic acid diethylamide, as supported by NAVDRUGLAB messaged 211713Z APR 99.

991216:	Applicant does not rate VA treatment in conjunction with discharge.

000119:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

000125:	SJA review determined the case sufficient in law and fact.

000127:	GCMCA [Commanding General, Marine Corps Base, Hawaii] directed the Applicant's discharge general (under 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 20000204 with a general (under honorable conditions) for misconduct due to drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1-6.  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 or general (under honorable conditions).  An Administrative Discharge Board found through unanimous vote that the Applicant committed misconduct and recommended administrative separation with a characterization of general (under honorable conditions).  The Applicant’s submissions and statements and the evidence of record do not 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 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 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

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