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

FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD06-00774

Applicant’s Request

The application for discharge review was received on 20060516.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 20070216.  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 – Personal problems.

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Death certificate of D_ P. C_, died March 25, 1999
Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19940125 - 19940710	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19940711		Date of Discharge:  19980326

Length of Service (years, months, days):

Active:    03  08  16
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  47

Highest Rank:  LCpl				MOS:  3531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (7)				Conduct:  4.4 (7)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Certificate of Commendation, Armed Forces Service Medal, Rifle Qualification Badge (Expert)

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:

940124:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

950720:	Counseling:  Advised of deficiencies in performance and conduct (Failure to be at appointed place of duty and under age drinking), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

951130:	NJP for violation of UCMJ, Article 86: Failing to go to the appointed place of duty at 0430, 951113.  Violation of UCMJ, Article 92: Failure to obey regulation on 951110.   Award:  Restriction and extra duty for 12 days.  Not appealed.

971201:	Counseling:  Advised of deficiencies in performance and conduct (Failure of PFT), necessary corrective actions explained and sources of assistance provided.

980115:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 980109, tested positive for tetrahydrocannabinol.

980130:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.  Award:  Forfeiture of $519.00 per month for 2 months, letter of reprimand, restriction for 60 days, reduction to E-2.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in service record.

980303:	Substance Abuse evaluation determined: Drug abuse, isolated incident.  Recommendation: Administrative separation.

980305:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct specifically pattern of misconduct and drug abuse.  Applicant informed the least favorable character of service possible was as under other than honorable conditions.

980305:	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.

980309:	Commanding Officer recommended to Applicant’s discharge under other than honorable conditions by reason of a pattern of misconduct and drug abuse.  

9803XX:	SJA review determined the case sufficient in law and fact.  [Day illegible]

98XXXX:	GCMCA, Commanding General, 2d Force Service Support Group, directed the Applicant's administrative separation under other than honorable conditions by reason of misconduct due to drug abuse.  [Day and month illegible]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980326 by reason of misconduct due to drug abuse (A and B) 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 (C and D).  

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 nonjudicial punishment proceedings for violations of Articles 86, 92 and 112a of the UCMJ.  The Applicant’s violations of Articles 92 and 112a are serious offenses.  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 he “failed drug test on purpose” due to a personal problem and the terminal illness of a family member.  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.  Neither the evidence of record nor the statements and documentation submitted by the Applicant demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  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 92, failure to obey order/regulation or 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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