Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. MD01-01029

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

 ex-PFC, USMC
Docket No. MD01-01029

Applicant’s Request

The application for discharge review, received 010803, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to Early termination of contract.  The applicant requested 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 020215.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character and narrative reason 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

1.  I feel that my discharge from the United States Marine Corps was unfair in comparison to what happened to a few other Marines.  There are three in particular that I am referring to, even though I don't know any of their names.  The first one popped on the piss test a total of four times with brig time in between each piss test.  The first time he was in the brig he had 30 days, the second was 60 days, and the third was 90 days.  After popping on the fourth piss test, he was discharged with an Administrative Separation.  The second Marine that I am referring to popped on only one piss test.  He was then sent to rehab for 60 days and was placed back in his MOS doing his same job as if nothing had happened.  Finally, the third Marine popped on a piss test and it was overlooked with nothing happening to the Marine.  About a month later, this Marine was promoted to Corporal.  In comparison to the three Marines above, I feel that I was treated unfairly getting reduced in rank to a PFC, getting half months pay for two months, having 45 days EPD and 60 days restriction, followed by an Other Than Honorable discharge from the United States Marine Corps.  SEMPER FI

Documentation

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

Copy of DD Form 214
Letter from 1^st Sgt USMC dated May 18, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960924 - 970817	COG

Period of Service Under Review:

Date of Enlistment:  980818		Date of Discharge:  991104

Length of Service (years, months, days):

	Active:    02  02  17
	Inactive:  None

Age at Entry:  19			Years Contracted:  5

Education Level:  12			AFQT:  85

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (7)			Conduct:  4.0 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC

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:

960923:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

990712:	NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 990706, tested positive for THC.

990719:	Counseled for deficiencies in performance and conduct [Wrongful use and possession of a controlled substance]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990722:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongful use and possession of a controlled substance.
Violation of UCMJ, Article 134:
Specification: Failure to obey an order or regulation.
Awarded forfeiture of $537.00 per month for 2 months, restriction for 6 60 days, extra duties for 45.  Not appealed.

990721:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.  

990723:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990723:	Applicant advised of his 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.

990921:	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 violation of Article 112A of the UCMJ.  

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

991012:	GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 991104 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 Board considers the propriety and equity of each case based upon of its own merits.  The Board could discern no injustice in how the applicant’s command handled the applicant’s misconduct and administrative separation. On 990723, the applicant chose to waive his right to contest the separation at an administrative discharge board. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. No other narrative reason for separation more clearly describes the conditions surrounding his discharge.  The discharge was proper and equitable.  Relief denied.

Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred 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. 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.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 to 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 “afls10.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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:   A6600/A9405/A9217/A0209/A9439/A9221