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Docket No. MD06-00560

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

FOR OFFICIAL USE ONLY

ex-PVT, USMC
Docket No. MD06-00560

Applicant’s Request

The application for discharge review was received on 20060310.  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 20070103.  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 - ISSUES AND DOCUMENTATION

Decisional Issues:

Equity: Quality of service

Documentation

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

Statement from Applicant, dtd July 19, 2005
List of References, dtd February 6, 2006
Letter from Applicant, dtd February 13, 2006
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20001229 - 20011217	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20011218		Date of Discharge:  20050523

Length of Service (years, months, days):

Active:    03  05  06  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None 
	Confinement:		  24 days

Age at Entry:  18 

Years Contracted:  5 

Education Level:  12				AFQT:  46

Highest Rank:  CPL				MOS:  6092 (Aircraft Mechanic)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (10)			Conduct:  4.2 (10)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Marine Corps Good Conduct Medal; Global War on Terrorism Service Medal; National Defense Service Medal, Navy Unit Commendation; Letter of Appreciation; Certificate of Appreciation (2); Meritorious Mast; Rifle Expert Badge (2^nd Award).

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:

001218:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

001229:	Enlistment waiver granted for marijuana usage.

041020:	NAVDRUGLAB, SAN DIEGO, CA, reported Applicant’s urine sample, received 041012, tested positive for THC.

041122:	Director, Substance Abuse Counseling Center, MCAS Yuma, AZ Assessment and Recommendation: Drug Abuse Cannabis Abuse.  His assessment does not seem to indicate dependence of alcohol or other substances, other than making bad decision.  This seems to be an isolated incident.  Return to duty.  Early Intervention, MAAC on 5 and 6 January 2005.  Refer to 12 Step program.  Potential for further productive service with recommended program: Good.   

041215:	Summary Court-Martial.
	Charge: violation of the UCMJ, Article 112A:
	Specification: In that Corporal B_ J. P_ (Applicant) U.S. Marine Corps, on active duty, did, at an unknown location, on or about 041004, wrongfully use marijuana.
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $795.00 pay per month for 1 month, 30 days confinement, reduction to E-1.
	CA action 041215:  Sentence approved and ordered executed.

041216:	To confinement.

050109:	From confinement.

050328:	Counseling:  Advised of deficiencies in performance and conduct (illegal drug involvement-marijuana), necessary corrective actions explained, advised that processed for administrative separation due to drug abuse is mandatory per par 6210.5 of MCO P1900.16F.

050412:	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 your conviction at a summary court-martial for illegal drug use while on active duty in the Marine Corps.  Applicant informed the least favorable character of service possible was under other than honorable conditions

050412:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to include written statement in rebuttal to this proposed separation and to obtain copies of the documents used to support the basis for the separation.

050412:	VA Treatment Statement of Understanding.

050413:	Commanding Officer, MALS-13, MAG-13, 3D MAW, MCAS YUMA, AZ, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct drug abuse.

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

050427:	Commanding General, Third Marine Aircraft Wing, directed the Applicant's under other than honorable conditions discharge by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050523 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).

Equity – Quality of service: The Applicant desires an upgrade, contending that “the offense does not fit the punishment due to past performance.”

Applicable regulations require that a member’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  However, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a member’s overall service.  There is credible evidence in the record that the Applicant used illegal drugs.  The Applicant was convicted by summary court-martial for violation of UCMJ Article 112a, wrongful use of marijuana.  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 Applicant was properly notified, processed and discharged under other than honorable conditions by reason of misconduct due to drug abuse.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Marine Corps.  Therefore, the Board concluded that the Applicant’s discharge was proper and equitable as issued.  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.  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