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USMC | DRB | 1999_Marine | MD99-00880
Original file (MD99-00880.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD99-00880

Applicant’s Request
The application for discharge review, received 990614, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000410. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. It was after lunch in the afternoon, when my Sgt B____ received a phone call, he said from the Alcohol Treatment Facility asking for me to come there. So he told me to go. I went there and was told that they did not call for me. So it being so late in the afternoon I just went back to my barracks. I did not think that I would be charged for being AWOL, because there were not expecting me back before the end of the day. The next day when I got to work Sgt B____ told me I was UA yesterday. I explained what had happened and he said that I was UA and I said okay. I figured I was being set up and that I could not do anything about it. I just signed the papers and went on with the day.

2. I went to the Substance Abuse Officer, SSgt L____, to tell him that I was having a problem. I had told him that I has started smoking marijuana to take the pain away from my jaw and knees. I had told him that I needed some help. He then went and got the 1 st Sgt and the 1 st Sgt gave me a lecture about smoking marijuana and then gave me a drug test. I was then sent back to work. About 2 weeks later the test came back positive. So they gave me another test. I failed that test also, but wasn't charged because the tests were given so close together. But I was again ordered to return to work. At this time I still hadn't received any disciplinary action or help with my problem or pain. So I continued to use the marijuana for the pain. Over the next three months I had been drug tested two more times and failed both. But again I had received no disciplinary action and was told to return to work. After my 1 st drug test I was sent to Alcohol Treatment Facility and was asked if I wanted rehabilitation for 30 days in Norfolk, VA I said, "No", because I was told I would be kicked out of the service anyway. So I declined, I thought that I could just take care of the problem when I got out on my own.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None
PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                960323 - 960415  COG

 Period of Service Under Review :
Date of Enlistment: 960416               Date of Discharge: 980206

 Length of Service (years, months, days):

         Active: 01 09 21
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12 (GED)                          AFQT: 73

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (4)                       Conduct: 3.7 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Badge, GCM, LOA, COA

Days of Unauthorized Absence: 2

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 :

960322:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

971218:  Summary Court-Martial
         Charge I: violation of the UCMJ, Article 86, Absent himself from his appointed place of duty from 0805 970707 until 0730, 970709. Charge II: violation of the UCMJ, Article 112a (3 Specifications), Wrongfully use THC.
         Findings: to Charge I and specification 1 thereunder, guilty, to Charge II and specifications 1, 2 and 3 thereunder, guilty.
         Sentence: CHL for 30 days, reduction to E-1.
         CA 971218: Sentence approved and ordered executed.
970623:  NAVDRUGLAB JACKSONVILLE FL reported applicant’s urine sample, received 970613, tested positive for [THC] [Extracted from case file].

970630:  Medical evaluation for drug abuse found the applicant to be drug dependent.

970724:  NAVDRUGLAB JACKSONVILLE FL reported applicant’s urine sample, received 970714, tested positive for [THC/Cocaine][Extracted from case file].

970919:  NAVDRUGLAB JACKSONVILLE FL reported applicant’s urine sample, received 970714, tested positive for [THC] [Extracted from case file].

980126:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse [Extracted from case file].
980126:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation [Extracted from case file].

980126:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was respondent's incident of illegal drug use as identified in NAVDRUGLAB JACKSONVILLE FL msg 230904Z of June 1997, NAVDRUGLAB JACKSONVILLE FL msg 240104Z of July 1997, NAVDRUGLAB JACKSONVILLE FL msg 192129Z of September 1997, and the respondent's Summary Court-Martial of 18 December 1997. [Extracted from case file].

980128:  SJA review determined the case sufficient in law and fact.

980130:  GCMCA [CG, 2d FSSG] 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 980206 under other than honorable conditions for misconduct due to drug abuse (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

In the applicant’s issues, the Board found that the applicant was not discharged for being UA. The applicant was discharged for illegal drug use. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 to Present.

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 [ e.g., Article 86, unauthorized absence for more than 30 days].
C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     

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