Author: CAP
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Docket No. MD04-01205

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

ex-PFC, USMC
Docket No. MD04-01205

Applicant’s Request

The application for discharge review was received on 20040723.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  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

No issues were submitted by the Applicant. 

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		000929 - 001203	COG

Period of Service Under Review:

Date of Enlistment:  001204		Date of Discharge:  030314

Length of Service (years, months, days):

	Active:    02  03  12
	Inactive:  None

Age at Entry:  19			Years Contracted:  5

Education Level:  12			AFQT:  58

Highest Rank:  PFC			MOS:  6300

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.5 (1)			Conduct:  3.5 (1)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, REB

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:

000927:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

011129:	Counseled regarding deficiencies, specifically, the your (Applicant) academic drop from the AVA-I course of instruction drop code 080-081.  .  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

020214:	Addiction Treatment Facility Department (AFTD), Naval Hospital Pensacola Evaluation ICO LCpl J_R_B_ [Applicant].  Recommend member [Applicant] be returned to duty and scheduled to attend Intensive Outpatient Treatment (Level II) at the ATFD, consisting of, on the average, three weeks of formal Intensive Outpatient Treatment and a structured Continuing Care Program.  Based on disclosures, member is amenable to treatment recommendations.  Members diagnosed with a substance use disorder and referred to treatment shall have a current physical examination (within 30 days) prior to or upon entry to treatment.  Also recommend that the member continue follow-up counseling with Mental Health Department, Naval Hospital, Pensacola.

020215:	Applicant signs a letter, Substance Abuse Treatment Refusal.  Applicant advised of the content of the references, which pertain to his refusal of treatment and refuses any and all treatment offered by the United States Navy/United States Marine Corps.

021122:	NJP for violation of UCMJ, Article 112a (1 specs):
Specification 1:  Did, at or near Pensacola, FL, on or about 17 Nov 02, wrongfully use marijuana.
Awarded reduction to PFC, E-2, forf of $619 pay per month for 2 months, restricted to limits of place of mess, billeting, duty and worship and most direct route to and from, with suspension from duty for 60 days.  Total forf $1238.  Not appealed.

030122:	Counseled for deficiencies in performance and conduct.  Specific reason for counseling: violation of Article 112a of the UCMJ (illegal use of marijuana.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030203:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and alcohol rehabilitation failure as evidenced by “your involvement in illegal in-service usage of a controlled substance as evidenced by your nonjudicial punishment dated 22 November 2002 and your failure to participate in, or cooperate in your own recovery.

030203:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

030205:	Applicant signs a letter, Substance Abuse Screening and Treatment Refusal.  Applicant advised of the content of the references, which pertain to his refusal of treatment and refuses any and all treatment offered by the United States Navy/United States Marine Corps.

030211:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and alcohol rehabilitation failure.  The factual basis for this recommendation was: Private First Class B_ [Applicant] , during his current enlistment, has one adverse entry contained on his page 11, one page 12 entry for violation of article 112a of the Uniform Code of Military Justice, and no page 13 entries.  On 23 January 2003, Private First Class B_ [Applicant] made a voluntary statement that he used marijuana on 15-16 November 2002.  On 14 February 2002, he was screened and found to meet the criteria for a diagnosis of alcohol dependence and recommended to attend intensive Outpatient Treatment (Level II).  On 15 February 2002, Private First Class B_ [Applicant] Intensive Outpatient Treatment was terminated for noncompliance.   On 5 February 2003, Private First Class B_ refused screening and substance abuse treatment offered by the United States Navy/United States Marine Corps.  Retention of the respondent [Applicant] is inconsistent with the morale, discipline, and military effectiveness of this organization.

030306:	GCMCA , Commander, Marine Corps Air Bases, Eastern Area, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse and alcohol rehabilitation failure.  For reporting purposes only, misconduct due to drug abuse is designated as the primary basis for separation.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041203 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).

The Applicant introduced no decisional issues for consideration by the Board.

There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for sailors 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 denied treatment for his drug use.  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.

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 his 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review 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.