Author: CAP
Last saved by: shirley.robertson
Company: NCPB

Docket No. MD04-00135

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

ex-LCpl, USMC
Docket No. MD04-00135

Applicant’s Request

The application for discharge review was received on 20031022.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record.  The Applicant did not list a representative on his DD Form 293.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628.  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:

Issue 1:  “1.  The discharge was improper because my preservice civilian conviction was used for their decision.”

Issue2:  “2.  Lack of evidence to support their decision.”

Issue 3:  “3.  The person that told investigators that she felt I was smoking marijuana was not certified to make that determination.

Issue 4:  “4.  The person that reported to CID said I was irrate and argumentive even experts say marijuana relaxes the person and they stay calm so how and why would I have been irrate.

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

Issue 5:  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
_______________________________________________________________________
In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the following statement in support of this Applicant’s petition.

Our review of the service record reflects that this Applicant had above average PRO/CON markings of 4.6/4.6, attained the rank of SGT and was issued a MUC.  He was awarded NJP on 960516 for VUCMJ, Arts. 86, 91.  On 000810, he signed a MCCID statement admitting to drug use while in the USMC.  A voluntary drug test was negative.  His due process included an ADB that determined that he committed misconduct due to drug abuse and recommended an UOTHC separation. His command concurred and he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by MARCORSEPMAN, Par. 6210.5.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because the service member that reported him for drug use was not certified, because there was a lack of sufficient evidence to support the decision to separate him, because his ADB improperly used a pre-service conviction as a basis for their decision and because the MCCID misinterpreted his behavior.  He has not submitted any additional evidence for the Board’s consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist and support this former member in resolving any improprieties or inequities in the character and basis for discharge.  Moreover, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724; SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.” 

Documentation

None.  Applicant marked the box "WILL NOT BE SUBMITTED.  PLEASE COMPLETE REVIEW BASED ON AVAILABLE SERVICE RECORDS."  

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		950524 - 981003	HON
	Inactive: USMCR (J)		940726 - 950523	COG

Period of Service Under Review:

Date of Enlistment:  981004		Date of Discharge:  010710

Length of Service (years, months, days):

	Active:    02  09  08
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages (number of marks):

Fitness Reports through 20000831 are available in the record.

Military Decorations:  GCM, CertApp

Unit/Campaign/Service Awards:  NDSM, AFEM, SSDR (w/1 star) MUC

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:

950524:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver was granted. 

951127:	Counseled for deficiencies in performance and conduct.  [Violation of DetO 3000.1J by entering Barracks P-30001 (V Co Bks).]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960221:	To UA (AWOL).	

960223:	From UA (AWOL).	

960515:	NJP for violation of UCMJ, Article 86:  without authority, absent himself from staging his gear in front of the 53 Area mess hall.
Violation of UCMJ, Article 91:  having received a lawful order not to go beyond the U. S. Border into Tijuana, Mexico while on liberty an order which it was his duty to obey did willfully disobey the same.  
Awd forf of $277.00 per month for 1 month, and 14 days restriction and extra duties.  Forf susp for 6 mos.  Not appealed.

960515:	Counseled for deficiencies in performance and conduct.  [Misconduct as evident by recent office hours.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981213:	Applicant’s handwritten letter to future wife admitting to spending his money on drugs.  “Yes, a lot of it went on on drugs.”

000810:	Applicant admitted to using marijuana while on active duty in a sworn statement given to a Criminal Investigation Division agent.  Additionally, he admitted to using his wife’s prescription painkillers.

000818:	NAVDRUGLAB [Jacksonville, FL] reported Applicant’s urine sample, received 000816, tested negative.

010111:	SACO/DACO Applicant’s use does not meet criteria for Cannabis abuse or dependence.

010124:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the Applicant’s “illegal in service use of a controlled substance.”

010124:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

010509:	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 under other than honorable conditions.

010517:	Commanding officer concurred with the findings and recommendations or the Administrative Discharge Board.

010523:	GCMCA [Commanding General, Marine Corps Air Station, Cherry Point] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010709:	SJA review determined the case sufficient in law and fact.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010710 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 - 4:  There is credible evidence in the record that the Applicant used illegal drugs.
The Applicant confessed his illegal drug use during his service in a signed and witnessed statement made to a CID agent on 10 Aug 2000 after acknowledging his rights, which he waived.  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.  The Board found no indication in the record that the Applicant was inequitably or improperly administratively processed.  The Applicant’s allegations do not refute the presumption of regularity in this case.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.  

Issue 5:  The Board considered the equity and propriety within the specific circumstances of the Applicant’s case.  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, 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 P1900.16E), 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

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.