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USMC | DRB | 2003_Marine | MD03-00205
Original file (MD03-00205.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD03-00205

Applicant’s Request
The application for discharge review, received 20021114, 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 20031003. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

1.       “My discharge was inequitable because it was based on one isolated incident during my active duty and at the time I was without the means to retain legal representation to dispute the urinalysis results. I have never used any illegal substances(s) either, before or after my service in the United States Marine Corps. I believe the resulting positive was a) human error b) false positive c) error in resulting from limited technology in drug testing used more than ten years ago.”
2.       “I received a letter of commendation (see DD214) while serving in the United States Marine Corps and request this document be proof of the level of professionalism in which I conducted myself during active duty.”
3.       “In closing, I am respectfully requesting the discharge upgrade to Honorable as well as the re-entry code be upgraded to support re-enlistment so that I may further serve my country upon completion of my college degree.”
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)                920724 - 920920  COG

 Period of Service Under Review :
Date of Enlistment: 920921               Date of Discharge: 931112

 Length of Service (years, months, days):

         Active: 01 01 22
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 10                        AFQT: 59

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (4)                       Conduct: 3.8 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Expert Badge, NDSM, LOA

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

 Chronological Listing of Significant Service Events :

920723:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

930618:  NAVDRUGLAB [NORFOLK, VA], reported Applicant’s urine sample, received 930607, tested positive for [THC].

930709:  Counseled concerning positive urinalysis, conducted 930602, Batch #4288 Specimen #10, indicating use of THC. Marine has been placed on the urinalysis screening program and has been advised of the physiological aspects of drug use, legal ramifications, and the detriment to morale and efficiency of the command. The indication of use will be grounds for disciplinary action and/or administrative separation by reason of unsuitability or misconduct.

930715:  NJP for violation of UCMJ, Article 112a: Did on 930607, wrongfully tested positive for using an illegal substance, known to be marijuana.
 Awarded: Reduction to E-1, forfeiture of $400.00 pay per month for 2 months with suspension of $300.00 pay per month for 2 months, suspended for 6 months, at which time unless sooner vacated, the forfeiture will be remitted without further action and restriction and extra duties for 45 days. Not appealed.
930723:  NJP imposed and suspended on 930715 for a period of 6 months is hereby vacated and the punishment is ordered executed.

930723:  Applicant clinically evaluated by CSACC for drug abuse, with a prognosis of fair. Applicant found to be good candidate for Level II Outpatient treatment.

930920:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 91(2 Specifications),
         Specification 1: At EICO, SptBn, TBS, 0100, 930723, willfully disobeyed order from Sgt P__ to change his uniform and clean the head; Specification 2: At EICO, SptBn, TBS, 0100, 930723, disrespectful to Sgt P__ by saying to him, “Call the MP’s or take me to the brig, but I ain’t going to fucking do it.” or words to that effect. Charge II: violation of the UCMJ, Article 92: At EICO, SptBn, TBS, 2110, 930723, having knowledge of BnBul 1000, violated same, by consuming alcohol under the age of 21.
         Finding: to Charge I and the specifications 1 and 2 thereunder, guilty. To Charge II and specification thereunder, not guilty.
         Sentence: Forfeiture of $407.00, confinement for 30 days.
         CA action 930927: Sentence approved and ordered executed.

931021:  Counseled on being eligible for VA treatment for drug abuse in conjunction with discharge. Applicant declined treatment.

931022:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
931027:  Applicant advised of his rights and having elected 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.

931027:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was your testing positive on the command unit urinalysis sweep and the following administrative/disciplinary actions: A: On 930607, you tested positive in a command unit urinalysis sweep for use of marijuana; B: On 930709, you received a page 11, 6105 counseling entry concerning a positive urinalysis indicating the use of marijuana; C: On 930715, you received a Battalion level non-judicial punishment for violation of Article 112a, UCMJ-wrongfully tested positive for using an illegal substance, known to be marijuana; D: On 930723, you were clinically evaluated by CSACC for drug abuse, with a prognosis of fair; E: On 930930, you received a Summary Court-Martial for violation of Articles 91 and 92, UCMJ – willfully disobeyed an order from Sgt P_; disrespectful to Sgt P_ and consuming alcohol under the age of 21; F: On 930920, you were confined at the MCCDC Brig until 931014.

931102:  SJA review determined the case sufficient in law and fact.

931103:  GCMCA [Commanding General, Marine Corps Combat Development Command] 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 19931112 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).

Issues 1 and 2. There is credible evidence in the record that the Applicant used illegal drugs. Despite the positive aspects of the Applicant’s service, drug abuse warranted processing for separation, normally under other than honorable conditions. Relief denied.

Issue 3. Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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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