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Docket No. MD05-00446

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

ex-Pvt, USMC
Docket No. MD05-00446

Applicant’s Request

The application for discharge review was received on 20050118.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20050516.  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.  “Denial of engagement to deal with a serious family problem lead to a desperate and foolish reaction.  Ignorance and youth go hand and hand.”

Documentation

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

None were submitted.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		941013 - 941212	COG

Period of Service Under Review:

Date of Enlistment:  941213		Date of Discharge:  960315

Length of Service (years, months, days):

	Active:    01  03  03
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  53

Highest Rank:  PFC			MOS:  3500

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (3)			Conduct:  3.6 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, RMB

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:

941010:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

941227:	NAVDRUGLAB, Great Lakes, IL, confirmed drug usage for urinalysis testing 941219.

950222:	CG, CO RTR MCRD letter 1900/1 RTRS1 dated 950217, waived the defect in this case and authorized Applicant’s retention in the USMC.  Applicant signed statement and agreed to complete enlistment.

951219:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 951204, tested positive for THC.

951227:	Commanding Officer recommends medical evaluation be made to determine if the positive results for use of THC is indicated for non-prescribed drug use.

951229:	Applicant’s heath record has been reviewed and it was determined that Applicant was not on a prescribed drug that would produce a positive result in a urinalysis.

960108:	Applicant’s dental record was reviewed and it was determined that Applicant was not on a prescribed drug that would produce a positive result in a urinalysis.

960124:	NJP for violation of UCMJ, Article 112a:
Specification: Wrongfully used marijuana during Nov 1995.
Awarded forfeiture of $300.00 per month for 2 months, restriction for 45 days, reduction to E-1.  Forfeiture of $300.00 for 1 month suspended for 6 months.  Not appealed.

960207:	Consolidate Drug and Alcohol Center assessment: Drug abuse, isolated incident.  Recommend administrative separation.

960207:	Applicant declined treatment in conjunction with EAS.

960215:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse.  The least favorable characterization of service which you may receive is under other than honorable conditions 

xxxxxx:	Applicant advised of 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.  [Undated]

960215:	Commanding Officer, Motor Transport School, Marine Corps Service Support Schools recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was wrongful use of marijuana.  

960305:	Commanding General, Marine Corps Base, Camp Lejeune, NC 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 19960315 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 Applicant tested positive for illegal drug use during accession screening.  This infraction was waived and the Applicant was retained.  The Applicant then tested positive for drug use on 19951219.  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 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 contends he was dealing “with a serious family problem” and that “ignorance and youth go hand and hand.”  While he may feel that his personal problems and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either 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.  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 18 Aug 95 to 30 Jan 97. 

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.