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USMC | DRB | 2002_Marine | MD02-00126
Original file (MD02-00126.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD02-00126

Applicant’s Request
The application for discharge review, received 011017, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020731. 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, as submitted

1. On 19 Oct 00, Private First Class (applicant) was separated from the United States Marine Corps by reason of misconduct due to wrongful use of marijuana on 20 Mar 00. The characterization of service was under other than honorable conditions. On the same day, Commanding Officer, 1 st Supply Battalion, J_ L_G_ wrote to the Commanding General, 1 st Supply Support Group stating, "I do not feel (applicant) has a drug related addiction" and recommended that (applicant) be retained in the Marine Corps. As a consequence, the Commanding General suspended (applicant's) discharge for a period of 12 months and, unless sooner vacated, to be remitted upon successful completion of the probationary period.
On 15 Jan 01, PFC (applicant) tested positive for MDMA. This is a drug unfamiliar to PFC (applicant) and one he has never deliberately ingested at any time in his life. When confronted with the test results, (applicant) adamantly denied using MDMA.
On 27 Jan 01, in the presence of Sergeant J_ J. W_, another Marine, LCpl J_ L_ B_ admitted that on 14 Jan 01, while at the Boogie Nightclub he, "... crushed a pill [ecstacy] and put it into PFC (applicant's) drink " B_ stated that (applicant) was unaware of what he did .

 LCpl B_ was referred to an Article 32 investigation for transferring drugs, assault on PFC (applicant) and other crimes arising out of his admitted misconduct.
Notwithstanding PFC (applicant's) vehement denial and even though LCpl B_ admitted "spiking" PFC (applicant's) drink, the Commanding General arbitrarily rejected (applicant's) claims of innocence and decided PFC (applicant) knowingly ingested MDMA.
On 16 Mar 01, without any evidence proving PFC (applicant) deliberately used MDMA, the Commanding General vacated the suspension and ordered PFC (applicant) to be separated from the Marine Corps with an Other Than Honorable Discharge because of his prior use of marijuana.
Because of the logical incongruity of both vacating PFC (applicant's) suspended discharge for deliberately ingesting MDMA and at the same time referring LCpl B_ to court martial for assault because he admitted placing ecstacy in (applicant's) drink without (applicant's) knowledge the Commanding General acted in an unreasonable, arbitrary and capricious fashion, abusing his administrative discretion, by vacating the suspension of PFC (applicant's) discharge.
Furthermore, PFC (applicant's) original suspension was inequitable because it was based on one isolated incident of marijuana use throughout the entire term of his enlistment with no other adverse action.
PFC (applicant) is a very patriotic young man. Because of recent world events he wants to be returned to active duty to fight for his country in the "War on Terrorism," but, because that option is not available to him and for the reasons set forth herein, Private First Class (applicant) hereby respectfully petitions the Naval Discharge Review Board to change his discharge to Honorable.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
First administrative discharge package dated October 19, 2000 (21 pages)
Second administrative discharge package dated March 16, 2001 (70 pages)
 Memorandum to Congressman dated March 10, 2001
 E-mail dated March 20, 2001 from applicant's defense counsel to trial counsel, giving notice of inconsistent prosecutorial theory
Rebuttal to proposed vacation of suspension of administrative separation
 Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                970114 - 971104  COG
Period of Service Under Review :
Date of Enlistment: 971105               Date of Discharge: 010326

 Length of Service (years, months, days):
         Active: 03 04 22
          Inactive: None
Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 35
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (9)                       Conduct: 4.3 (9)
Military Decorations: None
Unit/Campaign/Service Awards: SSDR, MM

 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 :

000404:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 000329, tested positive for THC.
000405:  Counseled regarding deficiencies, specifically, having a positive urinalysis sample of THC. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative separation warnings issued.
000901:  Applicant informed eligible but not recommended for promotion to Cpl for the months July, August, and September due to special court martial.

000912:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
000913:  Applicant advised of his rights and having consulted 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.
000915:  NJP for violation of UCMJ, Article 112a:
 Specification: Wrongfully use marijuana on 20Mar00.
 Awarded forfeiture of $100.00 per month for 2 months, restriction and extra duties for 30 days, reduction to PFC. Forfeiture of $100.00 for 2 months and restriction and extra duty for 21 days suspended for 6 months. Not appealed.
000929:  Applicant refused medical officer's evaluation for addictions.
001019:  Commanding Officer, 1 st Supply Battalion advised Commanding General, 1 st Force Service Support Group that applicant's non-judicial punishment for the positive urinalysis and his refusal for medical officer's evaluation for his drug use merits consideration for administrative discharge by reason of misconduct, but recommended applicant's retention since it was felt that applicant did not have an addiction to drugs.
001020:  SJA review determined the case sufficient in law and fact.

 001020:  GCMCA [Commanding General, 1 st Force Service Support Group] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse. The Commanding General suspended discharge for a period of 12 months.

010125:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 010119, tested positive for MDA/MDMA.

010126:  Vacated suspended forfeiture of $100.00 for 2 months, restriction and extra duty for 21 days awarded at CO's NJP dated 15Sep00.

010202:  Applicant notified of intended recommendation that suspended discharge be vacated and applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.
010302:  Commanding Officer recommended vacation of discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010307:  Applicant advised of his rights and having consulted 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.
010313:  SJA concurring with CO, 1 st Supply Battalion that previously suspended administrative separation be vacated.
010316:  GCMCA [Commanding General, 1 st Force Service Support Group] approved request for vacation of suspended discharge and 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 010326 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 separation authority’s decision to separate the applicant after his second positive urinalysis for illegal drugs was proper and equitable. Furthermore, there would have been no inequity even if the applicant had been separated after his first positive urinalysis for marijuana, despite his otherwise clean record. The Board found no injustice in the vacation of the applicant’s suspended separation. The applicant’s claims to the contrary are without merit. The applicant was properly notified of his impending separation and was afforded all rights due. On 010313, the SJA determined the case was sufficient in law and fact. There is credible evidence in the record that the applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. Relief denied.
The applicant’s discharge characterization accurately reflects his service to his country. 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. Relief denied.

The applicant 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. Legal representation at a personal appearance hearing is highly 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 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 “ afls14.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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