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

 ex-PVT, USMC
Docket No. MD04-00866

Applicant’s Request

The application for discharge review was received on 20040428.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant listed M_ A_ L_ as her representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041022.  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/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  Pettioner’s other than honorable discharge from the United States Marine Corps was improper because pettioner’s consumption of amphetamines was not wrongful as required by Article 112a, Uniform Code of Military Justice, 10 U.S.C. 912a (2004).”

Documentation

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

Memorandum in support of pettioner’s application for the records review of discharge 	from the armed forces of the United States (10 pages), not dated
Affidavit in support of C_ S_ H_, (4 pages) dtd 040704
Copy of Clinical Director, Alcohol Treatment Facility, Naval Hospital, Camp Lejeune, (3
	Pages) dtd 020926
Copy of page from Administrative Separations Proceedings In The Case of  C_ S_ H_, 	not dated

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		020424 - 020512	COG

Period of Service Under Review:

Date of Enlistment:  020513		Date of Discharge:  030113

Length of Service (years, months, days):

	Active:    00 08 00
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  46

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.1 (2)			Conduct:  3.1 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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:

020916:	NAVDRUGLAB Jacksonville FL, reported Applicant’s urine sample, received 020905, tested positive for amphetamine

020923:	NJP for violation of UCMJ, Article 112a (1 specs):
Specification 1:  In that Private First Class C_ S_ H_, U. S. Marine Corps, Fox Company, Marine Corps Combat Training Battalion, School of Infantry, Training Command, Camp Lejeune, did, at an undisclosed location, on or between 29 Aug 02 – 01 Sept 02, wrongfully use Amphetamines, a controlled substance.
Awarded: Reduction to E-1, forfeiture  $552.00 pay per month for 2 months, and 60 days restriction to the limits of F Co, MCTBn, SOI, TrngCmd CamLej to run concurrently, (Total forfeiture of $1104.00). Not appealed.

020924:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by amphetamine use as identified by positive urinalysis test results.

020924:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

020925:	Applicant submits statement: “ At this time I do not wish to be separated from the Marine Corps.  I fully understand that the mistake that I made was of bad judgment on my part and that I deserve to be punished for this mistake.”

020926:	Medical evaluation for substance abuse/dependence found no substance abuse at this time. Applicant denied chronic or habitual use of controlled substances.  Recommendation:  no substance use treatment indicated at this time; Applicant is found psychologically fit for full duty and returned to same; recommend that the Applicant be processed for Administrative Separation per MCO P1900.16.    Post service treatment offered and acknowledge by Applicant’s signature on Statement of Understanding of Treatment for Substance Abuse at a VA Medical Center.     

021021:	Commanding Officer, H & S Bn,  recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the use of amphetamine as identified by positive urinalysis.  Commanding Officer recommends that the discharge be suspended for one year provided that the Applicant encounters no other legal problems.

021112:	Executive Officer, Student Administration Company recommends that the Commanding Officer withdraw the recommendation for retention and administratively separate the Applicant for misconduct due to drug use, namely amphetamine.  Reasons: Applicant admitted that she broke restriction (imposed at NJP); Applicant states that she no longer requests retention and that she had only requested retention in order to please her mother.

021115:	Applicant’s statement:  “ I am no longer requesting retention.  I would like to go home, go to college and maybe later re-enlist if it is possible.”

021122:	Commanding Officer, School of Infantry, forwards recommendation to GCMCA, CG Marine Corps Base, Camp Lejeune NC, that the Applicant be discharged by reason of misconduct due to drug abuse and that the characterization of service be under other than honorable conditions.   

	[SJA review and GCMCA letter directing the discharge missing from service record.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030113 under other than 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.  The Applicant’s representative contends that the discharge was improper because the Applicant did not knowingly abuse amphetamines.   Under current regulations and case law, a finding of fact may infer knowing use of a controlled substance on the part of the Applicant merely on the basis of a positive urinalysis.  As such, the Commanding Officer was well within his discretion to presume that the Applicant’s positive urinalysis was the result of knowing, and thus wrongful, drug use.  The Applicant bears the burden of rebutting this presumption through the presentation of substantial and credible evidence.  To date, she has provided none for this Board’s consideration.  As such, the government enjoys the presumption of regularity in the conduct of its affairs. Relief denied.

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, however, 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 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 other evidence related to her discharge at that time.  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 P1900.16F), effective 01 September  2001 until Present. 

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