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Docket No. MD06-00326

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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD06-00326

Applicant’s Request

The application for discharge review was received on 20051206.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Chicago, IL.  The Applicant designated civilian counsel as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in Washington DC at the Washington Navy Yard.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061102.  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 from an attached document to the Board:

“Issue 1:
Applicant a high school graduate, male, black entered AD 1998 August 4 and promoted through the ranks to LCPL-attained awards and commendation listed above.  Exemplary service record until 2001/8/23 when Applicant underwent VA random drug screen urine sample capped social security numbers mislabeled.  However, no chain of custody document or laboratory results confirmed results.

Issue 2:  
Applicant discharged after alleged positive random drug screen at last duty station-Camp Pendleton California for tiny quantity of THC.

Issue 3:
Presumption of regularity rebutted and destroyed that normally attached to military records numerous attempts to secure laboratory data post-discharge has proved futile.  Applicant has no VA claim.

Issue 4:
Minor drug offense, tiny quantity, exemplary service record prior to alleged positive screen.

Issue 5:
Letters non availability of drug screen results chain of custody documents-NPRD and V/A generated, Certificates of school completion and awards, Rifle expert badge, Pistol sharpshooter badge, Marine combat training, enlisted warehouse course.”

Documentation

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

Ltr from Department of Veterans Affairs, dtd June 7, 2004
Ltr from P_ J. C_, Supervisory Customer Service  Representative, Customer Service Division, Department of Veterans Affairs, dtd July 16, 2004
Ltr from J_ F. W_, Archives Technician, National Personnel Records Center, dtd January 26, 2005  (2 copies)
Request Pertaining to Military Records, dtd February 18, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19980430 – 19980803	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19980804		Date of Discharge:  20010823

Length of Service (years, months, days):

Active:    03  00  20
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  21

Years Contracted:  4 

Education Level:  12				AFQT:  34

Highest Rank:  LCpl				MOS:  3051

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (7)				Conduct:  4.2 (7) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Expert Badge (1^st Award), Pistol 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:

980422:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.  

undated:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of September because of weight control, military appearance.  

010628:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010622, tested positive for THC.  No discrepancies noted in message.

010711:	Applicant refused of Medical Officer’s Evaluation (MOE).  Applicant informed of Veterans Administration treatment availability.

010720:	Counseling:  Advised of deficiencies in performance and conduct (Illegal drug involvement, THC usage identified through urinalysis confirmed by NAV Drug Lab San Diego msg 281427Z Jun 01.), necessary corrective actions explained and sources of assistance provided.

010720:	Commanding Officer, Supply Company, 1^st Supply Battalion, recommended to Commanding Officer, 1^st Supply Battalion, that the Applicant be administratively separated under other than honorable conditions by reason of misconduct due to drug abuse.

010726:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010806:	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 documented use of an illegal substance.  Applicant informed the least favorable character of service possible was under other than honorable conditions.  

010809:	Commanding Officer, 1^st Supply Battalion, recommended to Commander, 1^st Force Service Support Group, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the Navy Drug Lab message of 010627.  Commanding Officer’s comments:  “On 010627, Lance Corporal J_ (Applicant)’s urinalysis came back positive for marijuana (THC).  The drug concentration was at 22 nanorgrams for THC.  The established DOD cutoff level for THC is 15 nonograms.  On 010711, Lance Corporal J_ refused the Medical Officer’s Evaluation for his illegal use of a controlled substance.  Based on Lance Corporal J_’s disclosure of drug use prior to enlisting, he was granted a drug waiver.  Lance Corporal J_’s proficiency and conduct marks for the period ending 010731 are 3.5 proficiency and 3.0 conduct.  Lance Corporal J_ disobeyed the Marine Corps orders and policy regarding the illegal use of a controlled substance.  His drug use demonstrates a lack of discipline and integrity.  Although this is Lance Corporal J_’s only documented incident of serious misconduct, drug used is detrimental to good order and discipline and poses a serious threat to the safety and welfare of others.  When questioned about his drug use, Lance Corporal J_ denied it and has demonstrated no remorse or acknowledgement of responsibility for his actions.  Therefore, I recommend that Lance Corporal J_ receive an other than honorable conditions characterization of service discharge.” 

010817:	SJA review determined the case sufficient in law and fact.

010822: 	Applicant counseled concerning the loss of his military I.D. card.

010921:	Commander, 1^st Force Service Support Group, directs the discharge and notifies the Commandant of the Marine Corps (MMSB), that the Applicant will be discharged 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 20010823 by reason of misconduct due to drug abuse (A and B) with a service characterization 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 (C and D).  

Issues 1-2,4.  The Applicant implies that his discharge is inequitable because he had an exemplary record up until he tested positive for drug abuse.  The Applicant further implies his discharge should be changed because of an impropriety in the drug test and that he tested positive for a “tiny quantity” of illegal drugs.  Mandatory processing for separation is required for Marines who abuse illegal drugs. There is credible evidence in the record that the Applicant used illegal drugs.  Wrongful use of a controlled substance is the violation of Article 112a of the UCMJ and the commission of a serious offense.  Violations of Article 112a are punishable by punitive discharge if adjudged as part of the sentence upon conviction at special or general court-martial.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The evidence of record does not demonstrate that there were any irregularities in the Applicant’s testing or that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issue 3.  The Applicant implies that his discharge is improper because his attempts to “secure laboratory data post-discharge [have] proved futile.”  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that there were any irregularities in the Applicant’s positive urinalysis or subsequent administrative separation.  The Applicant’s statements alone are not sufficient to overcome the evidence of record.  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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a, wrongful use of a controlled substance.

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