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

Docket No. MD05-01491

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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD05-01491

Applicant’s Request

The application for discharge review was received on 20050906.  The Applicant requests the Narrative Reason for Separation be changed to “HONORABLE.”  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  Since the Applicant did not mark a block requesting a change in the Discharge Characterization of Service received at the time of discharge, the NDRB, under applicable instructions, presumed that the Applicant desires a change to honorable. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060607.  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 and reason for 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 and/or from an attached document/letter to the Board:

“One time mistake is not a pattern.
Never given the chance to speak with a lawyer, when I requested to speak with one.

Under Other Than Honorable Conditions (OTH).  OTH Discharges are warranted when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of members of the Military Service, or when the reason for separation is based one or more acts of omissions that constitute a significant departure from the conduct expected of members of the Military Services.  Examples of factors that may be considered include the use of force or violence to produce serious bodily injury or death, abuse of a special position of trust, disregard by a superior of customary, superior-subordinate relationships, acts of or omissions that endanger the security of the United States or the health and welfare of other members of the Military Services, and deliberate acts or omissions that seriously endanger the health and safety of other person.

Around the beginning of November 2002 while serving as a Recruiter in Albuquerque, NM, I made a decision that will consequently haunt me for the rest of my life.  I smoked Marijuana.  I can not change the past, I made the mistake and I have paid the price for making it.  I have no excuses, nor can I justify why or what I was doing at the time that made me do it.  But I do remember being charged with Violating Article lll2a.  In that Sergeant B_(Applicant), RS Albuquerque, violated the UCMJ by wrongful use of a controlled substance.

During my 7 years 4 months and 3 days of Service in the United States Marines Corps that was the only time I had ever been in any type of trouble.  For one mistake I went from a Senior Sergeant to a Lance Corporal in-a matter of Months.

From the Age of 12 when my Step Father sent me to the Marine Military Academy in Harlingen Texas the Military was the only thing I ever wanted or intended to do.  Both of my Grandfathers served in combat for the Army and my Step Grandfather was a pilot in the Air Force.  During my first enlistment and second enlistment I always killed myself to be the best Marine that I could possibly be.  I had and average Pro/Con marks of 4.8/4.7, always ran 1^st class PFTs, had numerous awards and accomplishments, I even volunteered for Recruiting duty.  I did this because it was my goal was to retire from the service and then work for the government in civil service.

Paragraph one is information I pulled off of the internet.  It states that an OTH discharge is based upon a pattern.  Out of the 7 years, I do not believe one incident is a pattern.  I was only allowed to speak with an attorney over the phone from California, which was of no help.  I was sent to a Substance Abuse Evaluation which last approximately 20 minuets and they recommended that I attend an Education Program beginning January 19, 2003.  I was not allowed the opportunity to go to this class, and 3 days later my discharge was final?  (exhibit A&B)

I am not sure of the process or what it takes to upgrade a discharge, but I would like to do whatever possible to do so.  Our country has been at War since my departure from the service.  I regret the fact that my immaturity has kept me from being able to help the men and women serving our country here in America and over seas.

I am requesting that my discharge be upgraded so that I can enlist into the Army.  The only thing holding me back from enlisting is my current discharge status.

Respectfully Submitted,

[signed]
J_ E.  B_(Applicant)”

Documentation

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

Applicant’s DD Form 214
Nineteen pages from Applicant’s service record
Letter to Applicant from Board for Correction of Naval Records, dtd May 11, 2005
DD Form 149, dtd March 8, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (DEP)	19950428 - 19951010	COG
	Active:   USMC	19951011 - 20000303	HON

Period of Service Under Review:

Date of Enlistment:  20000304		Date of Discharge:  20030214

Length of Service (years, months, days):

Active:    02  11  11
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  22

Years Contracted:  4

Education Level:  12				AFQT:  62

Highest Rank:  Sgt				MOS:  0151/8411

Final Enlisted Performance Evaluation Averages (number of marks):  Enlisted performance reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Navy and Marine Corps Achievement Medal, Marine Corps Good Conduct Medal (w/1 Star), National Defense Service Medal w/1 Star), Letter of Appreciation (2 awards), Rifle Marksmanship Badge

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:

950424:	Applicant signed statement of understanding concerning the Marine Corps policy on illegal use of drugs.

000304:	Reenlisted this date for a term of 4 years.

021121:	NAVDRUGLAB, San Diego, CA reported Applicant’s urine sample, received 021115, tested positive for THC.

021205:	NJP for violation of UCMJ, Article 112a: In that Sergeant J_ E. B_(Applicant), did, on or about 15 Nov 2002, at the Recruiting Station, 5338 Montgomery Blvd, Ste. 300, Albuquerque, NM, wrongfully use of a controlled substance, to wit:  marijuana.
	Award:  Forfeiture of $876 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4 and a punitive letter.  Restriction, extra duty and the punitive letter suspended for 6 months.  Not appealed.

021209:	Substance Abuse Evaluation:  No diagnosis.  The substance abuse staff recommended Applicant attend the Education program beginning 19 Jan 02 starting at 0830.

021211:	Counseling:  Advised of deficiencies in performance and conduct (Conviction of Art. 112a.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021213:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of drug abuse.  The factual basis for this recommendation was Applicant testing positive for THC on a urinalysis conducted on 08 Nov 2002.

021230:	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.

030107:	Commanding Officer, 8^th Marine Corps District, recommended to the Commanding General, Marine Corps Recruit Depot/Western Recruiting Region, San Diego, that the Applicant be discharge under other than honorable conditions by reason of drug abuse.  Commanding Officer’s comments:  “Based upon enclosures (3) thru (7), it is my belief that a discharge under other than honorable conditions is warranted.  On 08 November 2002, the respondent was given a urinalysis as part of a command sweep in which his sample tested positive for THC.  The samples test results received on 21 November 2002, from the Navy Drug Screening Lab are provided in enclosure (4).  Due to the fact that the respondent knowingly used an illegal substance, his retention would adversely affect the morale, discipline, and military effectiveness of this organization.  He has no potential for further service.”

030122:	SJA review determined the case sufficient in law and fact.

030127:	GCMCA, Commanding General, Marine Corps Recruit Depot/Western Recruiting Region, San Diego, CA 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 20030214 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).  The Board presumed regularity in the conduct of governmental affairs (D).

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 and possessed illegal drugs.  Indeed, the Applicant received nonjudicial punishment on 20021205 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.  This 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 not warranted.

The Applicant implies that his discharge is improper because he was not given an opportunity to talk to a lawyer.  By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant.  The record reveals that the Applicant was properly notified of the command’s intent to recommend discharge by reason of misconduct due to drug abuse on 20021213 with a least favorable characterization of under other than honorable conditions.  On 20021213, the Applicant acknowledged his rights to be exercised or waived.  The Applicant elected not to consult with counsel, understanding that it was in his best interest to do so prior to exercising or waiving any rights.  Based upon this review, the Board unanimously concluded that the Applicant’s discharge processing was in substantial compliance with applicable statutes, rules, and regulations.  Despite the Applicant’s contentions, the Board could find no error of fact, law, procedure, or discretion that might afford the Applicant relief.  Thus, the Board concluded that relief is not warranted.

The Applicant further implies that his discharge is improper because his one time mistake was not a pattern.  The Applicant is advised that he was discharge by reason of misconduct due to drug abuse.  This narrative reason for separation is separate and distinct from the narrative reason of misconduct due to pattern of misconduct.  Notwithstanding, under its responsibility to examine the propriety and equity of the Applicant's discharge, the NDRB will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Therefore changing the Narrative Reason for Separation to “Honorable” would be inappropriate.  Relief on this basis is denied.

The Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Since this issue does not serve to provide a foundation upon which the Board can grant relief, relief on this basis is 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 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.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 
01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.

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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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