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Docket No. MD06-00224

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

FOR OFFICIAL USE ONLY

ex-LCpl, USMC
Docket No. MD06-00224

Applicant’s Request

The application for discharge review was received on 20051114.  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 20060915.  After a thorough review of the available 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:

“It was mistake and we all make mistakes and been clean for a long time and I want to go back in the USMC and do this all over again.  I think I deserve a chance.”

Documentation

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

Employment reference ltr from Dr. F_ J_, dtd June 6, 2005
Applicant’s DD Form 214 (member 4) (2)
Letter from Applicant, dtd June 10, 2005
Applicant’s DD Form 214 (member 1)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19961224 - 19961229	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19961230		Date of Discharge:  20000913

Length of Service (years, months, days):

Active:    03  08  14  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  22

Years Contracted:  4 

Education Level:  12				AFQT:  34

Highest Rank:  LCpl				MOS:  3533

Final Enlisted Performance Evaluation Averages:

Proficiency:  NA*				Conduct:  NA*

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

*Not Available

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:

961221:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

961224:	MGD enlistment waiver (drug use) granted.

990125:	NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 990113, tested positive for THC.

990201:	Acknowledged understanding of eligibility but not recommended for promotion for the month of February 99 because of confirmed drug use and pending NJP for drug use.  Applicant chose not to make a statement.

990208:	NJP for violation of UCMJ, Article 112a: In that LCpl J_ wrongfully used marijuana while embarked on the USS NASSAU, on or about 3 Jan 99.  Also was found to have drug paraphernalia while embarked on the USS NASSAU, on or about 3 Jan 99.
	Award:  Forfeiture of $100.00 pay per month for 2 months, restriction for 60 days and reduction to E-2.  Not appealed.

990227:	Counseling:  Advised of deficiencies in performance and conduct (illegal drug involvement (marijuana usage as confirmed by NAV DRUG LAB JAXFL msg 20725-0309 Jan 99)) and advised of necessary corrective actions.

undated:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of April promotion period because of recent NJP, i.e. illegal use of marijuana.  Applicant chose not to make a statement.

990921:	Substance Abuse/Dependency Evaluation by LCDR M. A. P_, Clinical Psychologist at ATF, Camp Lejeune, NC: Drug abuse, isolated incident.  Recommendation: No treatment indicated at this time, individual found psychologically fit for full duty and returned to the same, process for Administrative Separation per MCO P1900.16. 

990921:	Statement of understanding of availability of treatment for substance abuse at a Veterans Administration Medical Center.  Applicant provided address of medical center nearest his home of record.
 
991007:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct, due to drug abuse.  The factual basis for this recommendation was illegal drug use, i.e. marijuana, as evidenced by Naval Drug Lab Message, Jacksonville Florida R 252241Z Jan 99.  It is also based on one nonjudicial punishment.  Applicant informed the least favorable character of service possible was under other than honorable conditions.

991007:	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.

991008:	Commanding Officer, 8^th Motor Transport Battalion, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct pursuant to paragraph 6210.5.  The factual basis for this recommendation was the Applicant’s positive urinalysis on 18 Mar 99, and violation of Article 112(a) and the Marine Corps Policy on drug abuse, which was disposed of at NJP on 8 Feb 99.  Commanding Officer’s comments:  “...it is my opinion that a discharge under other than honorable conditions is warranted.  Retention of the respondent would adversely affect the morale, discipline, and military effectiveness of this organization.”

991122:	SJA review determined the case sufficient in law and fact.

991129:	Commanding General, 2d Force Service Support Group, approved the Applicant’s under other than honorable conditions discharge by reason of misconduct due to drug abuse, but suspended the Applicant’s discharge for 12 months.

000803:	NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 000726 tested positive for cocaine and THC.

000808:	Counseling:  Advised of deficiencies in performance and conduct (Illegal drug use.  [Applicant] tested positive on a routine urinalysis.  This is the second time [Applicant has] tested positive on urinalysis for THC.), necessary corrective actions explained and sources of assistance provided, disciplinary.

000810:	Applicant notified of intended recommendation for vacation of the Applicant’s suspended discharge.

000810:	Applicant advised of rights and having elected not to consult with counsel, elected not to submit a rebuttal to the request to vacate his suspended discharge.

000814:	Commanding Officer, 2d Transportation Support Battalion, requested  Commanding General, 2d Force Service Support Group vacate Applicant’s suspended administrative separation.  Commanding Officer’s comments:  “Lance Corporal J_ (Applicant) was given a fresh opportunity to prove he is worthy of wearing the title Marine.  This violation of the UCMJ indicates that he made a decision not to take advantage of this opportunity and indicates a failure on his part to maintain acceptable standards of conduct.  In my opinion, this makes him unsuitable for further service.  This Marine needs to go home.” 

000822:	SJA review determined the case sufficient in law and fact.

000828:	GCMCA, Commanding General, 2d Force Service Support Group, vacated Applicant’s suspended 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 20000913 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 available 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).

The Applicant implies his discharge is inequitable because “it was [a] mistake.”  Mandatory processing for separation is required for Marines who abuse illegal drugs.  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 nonjudicial punishment proceedings for violation of Article 112a of the UCMJ.  On 19991129, Commanding General, 2d Force Service Support Group, suspended the Applicant’s under other than honorable conditions discharge for misconduct due to drug abuse.  In July 2003, the Applicant provided a urine sample that tested positive for THC and cocaine and, consequently, his suspended discharge was vacated.  The Applicant’s conduct is a violation of the special consideration given the Applicant at his waivered-enlistment.  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 Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant implies that his discharge is inequitable because he has “been clean for a long time” and he would like to reenlist.  There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits,  documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment, educational or reenlistment opportunities.  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 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.

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