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

 ex-PVT, USMC
Docket No. MD02-01238

Applicant’s Request

The application for discharge review, received 20020828, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  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 20031010.  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

1.	“My ability to serve was impaired by my youth and immaturity.  As a 17 year old Marine, everything was new and adventurous.  Wanting to start on the right foot, was not easy I thought.  Only thing that kept me out of serious trouble was good home training and common sense.  I’m not saying smoking marijuana is not serious but, it’s worst things to do during your time off.  I was young and dumb, not then knowing how smoking marijuana would have such a big impact on my future.  Please understand if I knew what I know now a t the age of 23, I wouldn’t have done it.”

2.	“I should have gotten a medical discharge because I was not medically qualified to serve after my fatal car accident.  I think dealing with the accident and the Military jargon that come with it, impaired my decision making and judgement.  I was 18 at the time of the accident, but not being able to do some of the things I used can do, had me looking at life in a different way.  Being on a Med Board was something I was not looking forward to.  I liked being a Marine.  What I was going to do next after getting discharged, along with the stress and pain that came with the accident, impaired my ability to serve.  I made bad decision during a crucial time in my life.  Faced with the same disabilities, I am forced to accept the situation that I put myself in, but also hoping that the DRB could lessen the burden by considering a change in discharge.  A young black disabled male with a UTH, does not have that many options in life.  THANK YOU.”

Documentation

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

Copy of DD Form 214
Criminal Record Letters (2)
Character Reference Letter from Co-worker
Character Reference Letter from Shift Supervisor
Character Reference Letter from Co-worker 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		960116 - 960603	COG

Period of Service Under Review:

Date of Enlistment:  960604		Date of Discharge:  980722

Length of Service (years, months, days):

	Active:    02  01  19
	Inactive:  None

Age at Entry:  17			Years Contracted:  4 

Education Level:  12			AFQT:  66

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

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

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge

Days of Unauthorized Absence:  4

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:

960113:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

970709:	NJP for violation of UCMJ, Article 86: UA 0830, 970703 until 0930, 970707 from H&S Co, (Food Service), 2d Bn, 8TH Mar; violation of UCMJ, Article 92: On 970703 willfully disobeyed a lawful order given by SSgt C_ to report to Barracks HP 155 for a working party.
Awarded forfeiture of 7 days pay for a period of 1 month, restriction and extra duties for 14 days.  Not appealed.

971027:	NAVDRUGLAB [JACKSONVILLE, FL], reported Applicant’s urine sample, received 971020, tested positive for [THC].

971030:	NJP for violation of UCMJ, Article 112a: Wrongfully used marijuana.
Awarded forfeiture of $450.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-1.  Not appealed.

971103:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

971103:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

971119:	Substance Abuse Evaluation Report indicates drug abuse (isolated incident).

971201:	NAVDRUGLAB [JACKSONVILLE, FL], reported Applicant’s urine sample, received 971118, tested positive for [THC].

971203:	Counseled for frequent incidents prejudicial to good order and discipline, deficiencies in performance and conduct, demonstrating poor judgment, lack of self discipline, irresponsibility and immaturity.  Frequent involvement with law enforcement, specifically driving with revoked license and inability to stay away from illegal drugs.  Frequently reporting late for appointed place of duty.  Inability to manage your personal affairs requiring almost daily involvement of the Plt Sgt, Mess Chief, and the 1stSgt.  Sources of assistance provided.	

971218:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 92: On board Camp Lejeune, NC, on or about 2145, 971206, failed to obey a lawful order, to wit: MCO 1700.22D, by wrongfully consuming alcohol while not of the legal drinking age.  Charge II: violation of the UCMJ, Article 112a: At an unknown location on or about 971113, wrongfully used the controlled substance marijuana (THC), as referenced by NAVDRUGLAB msg dtg 012147Z Dec 97.  Charge III: violation of the UCMJ, Article 134: (4 Specifications); Specification 1: Having been restricted to the limits of 2dBn, 8thMar, 2dMarDiv, by a person authorized to do so, did at 0700 on 971111, break said restriction; Specification 2: Having been restricted to the limits of 2dBn, 8thMar, 2dMarDiv, by a person authorized to do so, did at 2150 on 971126, break said restriction; Specification 3: Having been restricted to the limits of 2dBn, 8thMar, 2dMarDiv, by a person authorized to do so, did at 0700 on 971207, break said restriction; Specification 4: Having been restricted to the limits of 2dBn, 8thMar, 2dMarDiv, by a person authorized to do so, did at 0700 on 971211, break said restriction.
	Finding:  to Charge I and the specification thereunder, guilty.  To Charge II and the specification thereunder, guilty.  To Charge III and specifications 1 through 4 thereunder, guilty.
	Sentence:  Forfeiture of $600.00, confinement for 30 days.
	CA action 971218:  Sentence approved and ordered executed.

980130:	NAVDRUGLAB [JACKSONVILLE, FL], reported Applicant’s urine sample, received 980126, tested positive for [THC].

980225:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 112a: At an unknown location on or about 980122, wrongfully used the controlled substance marijuana, as referenced by NAVDRUGLAB msg dtg 302227Z Jan 98.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Forfeiture of $617.00, confinement for 30 days.
CA action 980225:  Sentence approved and ordered executed.

980408:	NJP for violation of UCMJ, Article 92: Violation of BO P5560.2K, by wrongfully allowing his privately owned vehicle to be driven on base while on Base Revocation.
Awarded forfeiture of $216.00 pay per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

980514:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was based upon your violation of Article 112a, as referenced by the NAVDRUGLAB msg R 272006Z OCT 97, positive urinalysis for marijuana (THC).  

980629:	Waiver of Administrative Discharge Board.

980710:	SJA review determined the case sufficient in law and fact.

980720:	GCMCA [Commanding General, 2d Marine Division, II Marine Expeditionary Force] 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 19980604 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.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issue 2.  Administrative separation for misconduct takes precedence over separation for other reasons, such as a separation based upon a physical or medical condition.  The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity 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, hardship, or for 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 P1900.16E), effective 31 Jan 97 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