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USMC | DRB | 2001_Marine | MD01-01032
Original file (MD01-01032.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD01-01032

Applicant’s Request
The application for discharge review, received 010807, requested that the characterization of service on the discharge be changed to honorable. 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 020215. 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. My discharge I think was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action.

2. This discharge is improper because clearly shows on Enclosure three the T.H.C. use was clearly crossed out and the cocaine use remained, on the other documents have T.H.C. and cocaine use listed.

3. My discharge I think was inequitable it was based on personal documents, and personal evaluation, when I went to psychologist I was asked the situation that and that was it. I don't think that a psychologist can make and evaluation in three minutes. Also on Enclosure 6 my staff sergeant was very unfilmiar with me. I think that under technicalites even evaluations like this would be the same average marine and discharge not really knowing the person or the situation. Every one makes mistakes !!

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from applicant dated August 2, 2001
Four pages from applicant's service record
Letter from Executive Commission, Hogar CREA International Inc to applicant dated February 27, 2001
Letter from Executive Commission, Hogar CREA International Inc to applicant dated November 16, 2000
Evaluation letter from Hogar CREA International Inc to applicant dated October 22, 2000
Evaluation letter from Hogar CREA International Inc to applicant dated January 23, 2000 (original and copy)
Evaluation letter from Hogar CREA International Inc to applicant dated November 21, 1999 (original and copy)
Evaluation letter from Hogar CREA International Inc to applicant dated July 25, 1999 (original and copy)
Evaluation letter from Hogar CREA International Inc to applicant dated October 22, 2000 (original and copy)
Evaluation letter from Hogar CREA International Inc to applicant dated January 23, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                980813 - 980908  COG

 Period of Service Under Review :
Date of Enlistment: 980909               Date of Discharge: 990520

 Length of Service (years, months, days):

         Active: 00 08 12
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 77

 Highest Rank: Pvt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (1)                       Conduct: 4.0 (1)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

 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 :

980812:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
990119:  NAVDRUGLAB, Jacksonville, FL, reported applicant’s urine sample, received 990111, tested positive for cocaine and THC.

 990205:  NJP for violation of UCMJ, Article 112A:
 Specification: Wrongfully use controlled substances, cocaine and marijuana (THC).
Awarded forfeiture of $479.00 per month for 1 month, restriction and extra duties for 45 days. Not appealed.
990205:  Counseled for deficiencies in performance and conduct. [Illegal drug involvement, specifically cocaine and marijuana use which was identified through urinalysis testing by the NAVDRUGLAB Jacksonville, FL 192232Z Jan 99]. Advised that processing for administrative separation for misconduct is mandatory.
990218:  Medical evaluation for drug abuse found the applicant to be a drug abuser (isolated incident), not drug dependent.

990223:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
990223:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was illegal drug use which resulted in him testing positive for cocaine and marijuana (THC) on an urinalysis given on 1 January 1999 as confirmed by NAVDRUGLAB, Jacksonville, FL, msg 192232Z Jan99.

990302:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
990421:  Applicant waived administrative discharge board.

990429:  SJA review determined the case sufficient in law and fact.

990506:  GCMCA [Commanding General, Marine Corps Base, Camp Lejeune, NC] 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 990520 under other than honorable conditions for misconduct due to drug abuse (A). The Board presumed regularity in the conduct of governmental affairs (B). 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).

Issue 1. The applicant states, his discharge was based on one isolated incident in 28 months of service with no other infractions. The Board found the applicant was only on active duty for 8 months, and had not even completed his entry level schools. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The discharge was proper and equitable. Relief denied.

Issue 2. The Board found no impropriety in the applicant’s drug lab report dated 19 Jan 99. The report clearly lists the applicant as testing positive for both THC and cocaine. Relief denied.

Issue 3. The applicant was discharged for his illegal use of drugs, not due to any psychological evaluation or his relationship with his chain of command. The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. 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. 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.

C. 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.

D. 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls10.jag.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:

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

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