Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. MD05-01489

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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD05-01489

Applicant’s Request

The application for discharge review was received on 20050908.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060531.  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 by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“The type of discharge I have on DD214 is prohibiting me from getting and holding on to the type job/career that I qualify for.  And this is keeping me from making the money I need to take care of my kids.  Also, I have done outstanding while in active duty.  I was chief dispatcher, line NCO in the motor pool, and also a leader in the platoon of younger Marines.  This was a mistake in my career that I cannot blame on anyone but myself, but now I’m ready to forget about it and get it off my DD214 and be proud to show my DD214 to anyone who request to see it for employment.  I will really appreciate this change and if you could make it possible.  Thank you ladies and/or gentlemen.”

Documentation

Only the service record book was reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19960924 – 19970623		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19970624		Date of Discharge:  20001108

Length of Service (years, months, days):

Active:    03  04  15  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  21 

Years Contracted:  4 

Education Level:  12				AFQT:  42

Highest Rank:  Cpl				MOS:  3532

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.7*		Conduct:  4.7*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Sea Service Deployment Ribbon, Expert Rifle Badge (x2), JMUC.

* Proficiency and Conduct marks extracted from CO’s ltr dtd 000516.

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 on and certified understanding of Marine Corps policy concerning illegal use of drugs.

960924:	Applicant granted enlistment waiver for drugs.

000502:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 000428, tested positive for THC.

000512:	Counseled concerning illegal use of a controlled substance, specifically testing positive for THC on the urinalysis test conducted on 000426.

000516:	NJP for violation of UCMJ, Article 112a: On or about 000428 did wrongfully use a controlled substance (THC).
	Award:  Forfeiture of $586. 00 pay per month for 2 months, restriction for 60 days, reduction to E-3.  Forfeiture of $586.00 pay per month for 1 month suspended for 6 months, at which time, unless sooner vacated, the suspended forfeiture will be remitted without further action.  Not appealed.

000517:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct, specifically drug abuse.  The factual basis for this recommendation was your illegal drug use which resulted in you testing positive for THC on a urinalysis given on 000426 and as confirmed by Naval Drug Lab, Jacksonville, Florida message 022229 May 2000.

000522:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

000626:	Clinical Director, Alcohol Treatment Facility, Camp Lejeune: Substance Abuse Evaluation indicated drug abuse, isolated incident, no treatment indicated, recommended processing for Administrative Separation per MCO P1900.16.  Applicant advised of nearest Veterans Administration Medical Center.
 
000628:	Commanding Officer, Battalion Landing Team 1/8, recommended to Commanding General, 2d Marine Division VIA Commanding Officer, 8^th Marines, Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the respondent’s incident of illegal drug use as identified in NAVDRUGLAB Jacksonville, Fl msg 022229 May 2000.  Commanding Officer’s comments:  “SMN stated that he had used marijuana after drinking with friends.  His company chain of command believes that he is a capable Marine who should be retained, so that he can contribute to this unit on the upcoming deployment.  I disagree.  He was an NCO with close to 3 years of service.  He should have known better and should contribute to mission accomplishment vice detract from it.  I recommend he be discharged.” 

000727:	Commanding Officer, 8^th Marines, 2d Marine Division, concurred with recommendation for discharge by reason of misconduct due to drug abuse; however, recommended discharge be suspended for twelve months.

001006:	SJA review determined the case sufficient in law and fact.

001006:	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.

001108:	DD Form 214: Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20001108 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions.  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 (B and C).

Whenever a Marine is involved in misconduct due to drug abuse, on the first offense, commanders shall process the Marine for administrative separation.  There is clear evidence in the Applicant’s service record that he used illegal drugs.  Indeed, the Applicant received nonjudicial punishment on 20000516 for violation of UCMJ Article 112a Wrongful use of controlled substance (marijuana).  Evidence of such misconduct may be used to characterize a Marine’s discharge as under other than honorable conditions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an upgrade in characterization of service.  Relief denied.

The Applicant desires an upgrade to enhance opportunity for gainful employment.  To permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question, but the Board found no such impropriety or inequity.  The Board has no authority to upgrade a discharge for the sole purpose of qualifying for benefits or enhancing employment and educational opportunities.  Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

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 post-service accomplishments or any other evidence related to the 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 P1900.16E), effective 31 Jan 97 until 31 August 2001.

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

C.  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