Author: CAP
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Docket No. MD06-00199

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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD06-00199

Applicant’s Request

The application for discharge review was received on 20051108.  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 designated T_ L. F_, a non-accredited representative, on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060915.  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 attached letter to the Board:

“Ladies and Gentlemen, 

In January 2002 I and three other Marines in my unit were accused of using illegal drug while serving in Motor Transport in the United States Marine Corps while stationed at Camp Pendleton, California.

We were consequently discharged on March 15^TH, 2002 with “under other than honorable conditions.

I submit the following as the basis for my appeal to upgrade my discharge to either “Honorable” or “Under Honorable Conditions” because I know we did no wrong.

The illegal drugs we supposedly used, we purchased at the local downtown Oceanside GNC store, which is a health-food store.

I submit here that there was nothing on the container label that indicated any illegal drugs or anything harmful to the human body had been used in the formula.

We would purchase this powered formula and mix it with milk to drink, and along with regular weight lifting and other strenuous exercise, it would increase our physical strength and body mass.

Pasta has the same effect on the human body, only very large quantities of past must be consumed to achieve what these flavored drinks do, any body builder or physical trainer will say the same.

I also submit that during the last Olympic Games that were held in Salt Lake City, Utah, a number of Olympic Champions were also accused of using illegal drugs and they were consequently removed as champions.

They had also been using these same kinds of drinks to help tone their bodies and to increase their performance, earning them their status as champions.

All have since been vindicated following an FDA investigation and their status has been reinstated as Olympic champions, but it cannot be the same because of the humiliation that they have been forces to endure, as I and my fellow Marines have been forced to endure.

Thank you for your time and consideration in this very important matter.

I still hold the Marine Corps in very high regard, and for our future generations, I truly hope that justice will prevail.

Respectfully, 
[signed] T_ F_ (Applicant)
T_ C_ F_ (Applicant) – (SSN)
(Address)
(Telephone)”

Documentation

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

Applicant letter dtd October 31, 2005 (2 pages)
Applicant’s DD Form 214
Applicant’s DD Form 215

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20001208 - 20010121	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010122		Date of Discharge:  20020315

Length of Service (years, months, days):

Active:    01  01  24  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  36

Highest Rank:  PFC				MOS:  3531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (4)			Conduct:  4.2 (4)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Sharpshooter 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:

001208:	CG Level waiver granted.

020123:	Battalion NJP for violation of UCMJ, Article 92 (2 specs):  Failure to obey a lawful order.
Violation of UCMJ, Article 111: Drunken or reckless driving.
	Award:  Forfeiture of $500.00 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal.

020128:	NAVDRUGLAB, San Diego, CA msg 282210Z JAN 02 reported Applicant’s urine sample, received 020118, tested positive for THC.

020204:	Counseling:  Advised of deficiencies in performance and conduct (Specifically, on 020123 Applicant was found guilty at Bn NJP for violating the UCMJ.  On 020112 Applicant was detained by PMO for driving under the influence of alcohol, and drinking under the age of 21. Also advised that my driving privileges are temporary revoked until my magistrate hearing which is scheduled for 8 February 2002, at which time I will have my driving privileges suspended for a year from that date.  If I am caught driving aboard any Base while in a suspended status Applicant will be in violation of a lawful order and the UCMJ and will be subject to further judicial or adverse administrative action.  I am further notified I am not eligible for promotion for a period of 12 months from the date of my conviction at Bn NJP for DUI which was on 020123.)  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020206:	Battalion NJP for violation of UCMJ, Article 112a:  Wrongful use of controlled substance.
	Award:  Restriction and extra duty for 45 days.  Not appealed.

020207:	Medical Entry, Naval Addictions Rehabilitation and Education Department, Naval Hospital, Camp Pendleton, CA, LCDR M_ R_, MC, USN, Psychiatrist:  Applicant refuses medical officer’s evaluation for addictions due to positive UDS Marijuana – THC. 

020207:	Medical Entry, Naval Addictions Rehabilitation and Education Department, Naval Hospital, Camp Pendleton, CA, LCDR M_ R_, MC, USN, Psychiatrist:  Applicant advised of VA addiction treatment availability.

020212:	Counseling:  Advised of deficiencies in performance and conduct (Applicant found guilty at Battalion NJP for violating the UCMJ.  In particular for using a controlled substance THC with a level of 64 NG/ML).  Necessary corrective actions explained, sources of assistance provided.  Applicant advised of being processed for administrative discharge due to drug abuse.

020212:	Applicant notified of intended recommendation for discharge by reason of illegal drug use under other than honorable conditions.  The factual basis for this recommendation was positive urinalysis dated 31 January 2002.  Applicant informed the least favorable character of service possible was as under other than honorable conditions.  

020212:	Applicant advised of rights and having elected not to consult, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

020212:	Commanding Officer, Headquarters Battalion, 1^st Marine Division, recommended to Commanding General, 1^st Marine Division Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug usage (violation of article 112a UCMJ).  Commanding Officer’s comments:  “Pvt F_ (Applicant) has no potential for further productive service.  The documented instance of his misconduct represents a “significant departure” from the conduct expected of all Marines.  Because of the unsatisfactory quality of this Marine’s conduct, and the positive results of his urinalysis test for use of marijuana; I recommend that he be discharged with a characterization of service as under other than honorable.” 

020222:	SJA review determined the case sufficient in law and fact.

020301:	GCMCA, Commanding General, 1^st Marine Division 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 20020315 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 Applicant implies that his positive urinalysis was the result of taking commercially available legal supplements.  The Board found there is credible evidence in the record that the Applicant used illegal drugs.  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 denied the opportunity to challenge the positive urinalysis results, the nonjudicial punishment or to fully exercise his rights during the administrative discharge process.  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.

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by a retention warning and 2 nonjudicial punishment proceedings for violations of Articles 92, 111 and 112a of the UCMJ.  The NDRB advises the Applicant that certain serious offenses warrant separation from the Marine Corps in order to maintain proper order and discipline. Violations of Article 92, 111 and 112a are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant asserts in support of his contention that certain unnamed Olympic athletes during the Salt Lake City Olympics were accused of illegal drug use, “removed as champions” and subsequently “vindicated following an FDA investigation.”  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Marine Corps.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps.  A preponderance of the evidence reviewed supports the conclusion that the Applicant used an illegal drug, that separation from the Marine Corps was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted.  As such, relief 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 any claims of post-service accomplishments or any additional evidence related to this discharge.  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.

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