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USMC | DRB | 2003_Marine | MD03-00783
Original file (MD03-00783.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD03-00783

Applicant’s Request
The application for discharge review was received on 20030319. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests 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 20040303. 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

 Applicant’s issues, as stated on the application:

“1. My discharge was inequitable because it was based on one isolated incident in 42 months of service with no other adverse action.”
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)                900824 - 910107  COG

 Period of Service Under Review :
Date of Enlistment: 910108               Date of Discharge: 931105

 Length of Service (years, months, days):

         Active: 02 09 28
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 39

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (7)                       Conduct: 3.8 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, MM, 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-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

 Chronological Listing of Significant Service Events :

900822:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
921014:  NJP for violation of UCMJ, Article 91: Failed to obey a lawful order given by a SNCO to halt and report to him; violation of UCMJ, Article 92: Did on or about 2105, 921003 violate MCO (Uniform Regs) by wearing a earring while on liberty; violation of UCMJ, Article 134: Did on or about 2105, 921003 attempt to deceive a SNCO by giving a false name of K_ when asked his name by a SNCO in the performance of his duties.
 Awarded forfeiture of $200.00 pay per month for 1 month (suspended for 6 months), restriction and extra duties for 10 days. Not appealed.
930428:  Counseled for deficiencies in performance and conduct. [Failure to be at appointed place of duty for morning formation.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930618:  NAVDRUGLAB [San Diego, CA], reported Applicant’s urine sample, received 930611, tested positive for [Cocaine].
930802:  NJP for violation of UCMJ, Article 112a: Did on or about or within five days of 930610 use a controlled substance, i.e., Cocaine, THC as reported by OPNAV Report 5350-4.
 Awarded forfeiture of $300.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-2. Appealed 930802. Appeal denied 930806.
930823:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
930831:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
930909:  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 NJP which evidenced your illegal use of drugs.

931005:  Substance Abuse Evaluation: Urine tested positive for marijuana and cocaine on 930607. Admits to use of both drugs at that time at a party in L.A. States it was first time use. Denies use prior to USMC. Denies frequent or recurrent use. Patient states he was mildly intoxicated with alcohol at time of decision to use THC/Cocaine. Recommended for Level II treatment.

931007:  VA Statement of Understanding: Applicant acknowledged being evaluated by a Medical Officer and diagnosed as a drug abuser. Applicant understands that he was determined to be non-dependent and therefore, is not entitled to treatment in conjunction with discharge.

931025:  SJA review determined the case sufficient in law and fact.

931101:  GCMCA [Commanding General, 1 st Marine Divison] 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 19931105 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. There is credible evidence in the record that the Applicant used illegal drugs. Even one instance of drug abuse warranted processing for separation. Separation under these conditions generally results in characterization of service 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 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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