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

 ex-Pvt, USMC
Docket No. MD04-01060

Applicant’s Request

The application for discharge review was received on 20040616.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance hearing before the Board in Washington, D.C.  In the acknowledgment letter, the Applicant was advised that his case would receive a documentary record review prior to a personal appearance hearing.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041122.  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.  “I believe my discharge was in error for the following reasons:
This was the result of one isolated incident in my two and one half year career in the USMC.  The entire problem revolved around one random traffic stop where I tested positive for drugs.  I had not knowingly taken any illiegal substance but I was returning from a party when I was tested by Base Security personnel.  
Before and after this incident there were no instances of misconduct or insubordination.
I agreed to deployment to Iraq after this incident with the understanding that this would benefit my case and demonstrate that I wanted to be a good Marine.  My superior officers told me that this would look good on my record, and I did want to serve my country.  During my tour in Iraq I performed my duties without incident, and I agreed to stay an additional three months with the promise that this would also help my cause.
My drug related problems were not considered to be any more than a one time occurence as there was never any mention of counseling or other intervention for chenical dependaecy.  There was never any indication that my chain of command considered this a problem.
The individuals most knowledgeable of my case were not available at the time the decision to Court Martial me was made.  My Company had a new Commander and a new First Sergeant at the time this decision was made and they had no knowledge of the promises that had been made to me.  They also did not have the first hand knowlede of my good record before and after the incident. 

The decision to discharge me was not required by the Court Martial Board’s order, but rather was listed as one possible outcome.  Other individuals who were involved in the same incident and who had admitted to knowingly using drugs were given a similar sentence, but were not discharged.

I did not have legal counsel present at the time of my Court Martial, i was told that having Counsel present could have resulted in a stiffer sentence, however I now question whether that was true.

I served my sentence and returned to the unit for two months before the decision to discharge me was made.  During that time I had no disciplinary problems, and had volunteered to go back to Iraq.  I had assumed that I would be permitted to stay in the Corps, and was looking forward to serving out my enlistment.  I was not really given any time to react when they finally decided to discharge me.

I feel that I was a good Marine and that I made one isolated mistake.  I do not believe that a Less Than Honorable discharge was just and equitable.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		010323 - 010605	COG

Period of Service Under Review:

Date of Enlistment:  010606		Date of Discharge:  040123

Length of Service (years, months, days):

	Active:    02  07  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rank:  LCpl			MOS:  3521

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (7)			Conduct:  3.4 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

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:

010222:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

010323:	Waiver granted for prior service drug abuse.

021029:	NAVDRUGLAB [San Diego, CA], reported Applicant’s urine sample, received 021023, tested positive for MDA/MDMA.

021217:	Applicant refused medical evaluation for drug abuse.

031020:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

031021:	Applicant advised of rights and having consulted 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.

031021:	Summary Court-Martial.
Charge I. Violation of UCMJ, Article 92: Consuming alcohol under the age of 21 on 021020.
Charge II. Violation of the UCMJ, Article 111: Drive while under the influence of alcohol on 021020.
Charge III. Violation of the UCMJ, Article 112a:  Wrongfully use MDMA on 021020.
Findings: Guilty to all charges.
Sentence: Forfeiture of $767.00, confinement for 30 days, reduction to Pvt.  CA action: 031021.  Sentence approved and ordered executed.

031120:	Counseled for deficiencies in performance and conduct.  [Illegal drug use, specifically amphetamine and methamphetamine.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

031205:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  

040115:	SJA review determined the case sufficient in law and fact.

040126:	GCMCA [CG, 1st MARDIV (Rein)] 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 20040123 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.  There is credible evidence in the record that the Applicant used illegal drugs.  Even one instance of drug abuse warranted processing for separation.  The fact that the Applicant was not processed for administrative separation until he had returned from deployment in support of Operation Iraqi Freedom one year after his confirmed use of drugs does not render his separation inequitable or improper.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The positive aspects of the Applicant’s service record do not mitigate his misconduct.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety is evident during the Applicant’s enlistment.  Additionally, 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.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 P1900.16F), 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