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USMC | DRB | 2002_Marine | MD02-00711
Original file (MD02-00711.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-00711

Applicant’s Request
The application for discharge review, received 020418, 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 030131. 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. I HAVE NEVER DONE DRUGS BEFORE. I WAS ACCUSED OF DRUG ABUSE AFTER A TRIP TO TIJUANA, MEXICO. THE ONLY THING THAT I CAN THINK OF IS THAT SOMEONE, UNKNOWN TO ME, MUST HAVE SLIPPED SOMETHING (DRUG AND/OR DRUGS) INTO MY DRINK. ANOTHER MARINE THAT WAS WITH ME ALSO TESTED POSITIVE FOR DRUGS UPON RETURNING FROM OUR AUTHORIZED ABSENCE OF LEAVE. I AM PROUD TO HAVE SERVED MY COUNTRY AND AM FOREVER WILING TO DO IT AGAIN. I CAN'T BELIEVE THAT THE MARINE CORPS. TREATED ME THIS WAY. THOUGH I WOULD BE PROUD TO GO BACK IN.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                010222 - 010319  COG

 Period of Service Under Review :
Date of Enlistment: 010320               Date of Discharge: 011010

 Length of Service (years, months, days):

         Active: 00 06 21
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rank: Pvt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (1)                       Conduct: 4.2 (1)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

010209:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.



010720:  NJP for violation of UCMJ, Article 86:
 Specification : Failed to report to appointed place of duty from 0801 on 010716 until 1700 on 010718 (2 days/surrendered).
Awarded forfeiture of $243.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
010720:  Counseled for deficiencies in performance and conduct. (Absent from appointed place of duty from 0800 on 010716 until 1700 on 010718.) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010728:  Mental Health Consultation Sheet: Assessment: Depression NOS. Axis I: Dependent personality disorder. Recommendations: Recommend Entry Level Separation.
010731:         Counseled in accordance with the requirements of MARCORSEPMAN par. 6105. The following medical problem(s) have been identified: You have been diagnosed with a personality disorder that hinders your ability to train. Necessary corrective actions explained, sources of assistance provided.
010810:  NJP for violation of UCMJ, Article 112A:
 Specification : Wrongful use of a controlled substance, to wit: tested positive for amphetamine and methamphetamine on a urinalysis conducted on 010719.
Awarded forfeiture of $521.00 per month for 2 months, restriction and extra duties for 45 days. Not appealed.
010815:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
010815:  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.

010815:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was wrongful use of illicit drugs. Your willful use of amphetamine and methamphetamine is a direct violation of the Marine Corps' policy on drug abuse and constitutes a flaunting of authority and that policy. Through your actions, you have demonstrated that you have no potential for continued honorable service in the Marine Corps.

010820:  Applicant refused medical officer's evaluation for drug abuse. Applicant briefed upon and certified understanding of availability and locations of VA Addiction Treatment Facilities.

010821:  Applicant to voluntary leave for an indefinite period while administrative separation is reviewed.

010926:  SJA review determined the case sufficient in law and fact.

010928:  GCMCA [Commanding General, Marine Corps Base, Camp Pendleton] 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 011010 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 contends that his discharge was not equitable. The Board, however, found that there is credible evidence in his service record of illegal drug use. This drug use warranted processing for separation under other than honorable conditions and the Applicant acknowledged this fact in his signed letter on 010815 where he waived his right to an Administrative Discharge Board. Other aspects of the Applicant's service and medical records do not mitigate the Applicant's misconduct. The NDRB was not persuaded by the Applicant’s claim to have unknowingly ingested illegal drugs. Relief denied.
The following is provided for the edification of the Applicant. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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 may be considered. Examples include documentation such as educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of substance-free lifestyle. At this time, the applicant has not provided such documentation for the Board to consider.

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. 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 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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