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USMC | DRB | 2002_Marine | MD02-00786
Original file (MD02-00786.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD02-00786

Applicant’s Request
The application for discharge review, received 020509, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant listed Civilian Counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030206. 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. My discharge under conditions other than honorable stems from a false positive on an urinalysis test. I saw a document from the transportation log stating that there had been a problem in the transportation of a group of samples which included mine. Due to this problem, certain samples had been contaminated. Once I was charged due to this false positive, my appointed counsel was unable to obtain this document. Because he felt it would be difficult to impossible to prove this mistake without this document, he advised me to take a discharge under conditions other than honorable rather than a risk a trial that could result in jail time and a dishonorable discharge. My attorney also advised me that it was likely that I would have my discharge upgraded because I have no history of drug use and have received several meritorious commendations. Upon receiving the news of the positive test, I demanded to be tested again immediately because I knew it was false. I was not given another test, however. I have passed every other drug test which I have been given, including post discharge test for employment purpose.
Documentation
Only the medical record and the following additional documentation, submitted by the Applicant, was considered:
Affidavit from State of Tennessee County of Coffee dated April 29, 2002 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
          Inactive: USMCR(J)                960529 - 960905  COG
Period of Service Under Review :
Date of Enlistment: 960906               Date of Discharge: 980313

 Length of Service (years, months, days):
         Active: 01 06 08
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

Education Level: UNK              AFQT: UNK
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.4 (3)                       Conduct: 3.9 (3) (Extracted from Unit Diary)

 Military Decorations: None
Unit/Campaign/Service Awards: LOA (2), MUC, Rifle Expert Badge

 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 :

NO SERVICE RECORD AVAILABLE.
980123:  NJP. Awarded forfeiture of $519.00 per month for 1 month, reduction to E-2. Not appealed.
980205:  Medical officer's substance abuse/dependency evaluation indicates Applicant meets DSM criteria for Alcohol Abuse 305.00 and Drug Abuse (Marijuana). Patient denies, admits to possible 2 nd hand smoke.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 980313 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 did not provide evidence sufficient to overturn the presumption that he used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The discharge was proper and equitable. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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 not warranted.

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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