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USMC | DRB | 2003_Marine | MD03-01061
Original file (MD03-01061.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD03-01061

Applicant’s Request
The application for discharge review was received on 20030530. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant listed the Disabled American Veterans as his representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20020408. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN 6210.5.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 No issues were submitted by the Applicant.

Issues submitted by Applicant’s counsel/representative (DAV):

 1. “After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable Conditions discharge to that of Honorable.

The FSM served on active service from June 30, 1999 to May 10, 2002 at which time he was discharged due to Misconduct.

The FSM contends the current discharge is improper because it contradicts the initial Board recommendation of retention on active service. Numerous individuals testified on behalf of FSM Spinner at the time of the Board proceedings. Making sure their willingness to continue to serve with the FSM was on record.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

Under the premises of equitable relief, we believe the Board can upgrade the current discharge to reflect an Honorable Conditions discharge, based on the good service the member did put forth; the recommendations of those on active duty for retention, and since retention was not afforded due to the Command at that time wishing to make an example of FSM S_ (Applicant). Also find the Board will reflect on the evidence of record this was the one and only time of drug use for the FSM, and done during a bout of depression, where the FSM was not fully in control of his judgment.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
District of Columbia Public Schools Office of the Chief Human Resources Officer letter dtd 2 May 2002 w/ enclosure
Recommendation for Separation ltr dtd 24 Jan 2002
Recommendation for Separation ltr dtd 11 Dec 2002
Recommendation for Separation ltr dtd 30 Dec 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None             
         Inactive: USMCR(J)                990628 - 990629  COG

 Period of Service Under Review :
Date of Enlistment: 960930               Date of Discharge: 020510

 Length of Service (years, months, days):

         Active: 02 10 11
         Inactive: 00 00 02

 Age at Entry: 24                          Years Contracted: 4

Education Level: 14                        AFQT: 63

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                          Conduct: NMF

 Military Decorations: Navy Achievement Medal

 Unit/Campaign/Service Awards: None found in service record book.

 Days of Unauthorized Absence: None

* No Marks Found in service record book.

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

GENERAL (UNDER HONORALBE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

 Chronological Listing of Significant Service Events :

990623:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

010716:  Applicant was evaluated by the SACC as a result of a self-referral. SACC recommended Applicant report to a MO for further evaluation.

010717:  Applicant reported to MO at Navy Annex Medical Clinic. MO diagnosed Applicant as alcohol dependent with a recommendation that he be entered into an Intensive Outpatient Treatment Services.

010725:  Applicant reported to Intensive Outpatient Services Program.

010726:  Quest Diagnostics Incorporated reports Applicant’s urine sample test positive for cannabinoid.

0107XX:  Applicant placed on probationary status in Alcohol and Drug Addiction Program as a result of testing positive for THC.

010807:  Applicant discharged from Outpatient Treatment Services as a failure resulting from arriving 30 minutes late on 7 August 2001 after being placed on probationary status for testing positive for THC on 25 Jul 2001.

010810:  MPI investigation reports Applicant admitted to using a controlled substance (marijuana) on one occasion several weeks prior to receiving orders to attend an intensive outpatient drug and alcohol treatment program.

010831:  Applicant readmitted to Outpatient Treatment Services.

 010910:  NJP for violation of UCMJ, Article 112a (1 spec):
 Specification 1: Wrongful use of marijuana, a controlled substance.
Awarded reduction to E-2, forfeiture of $584.00 per month for 2 months, 45 days restriction and extra duties for 45 days. 15 days extra duty and 15 days restriction suspended for 6 months. Not appealed.
011005:  Applicant completed formal Intensive Outpatient Services.

011101:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the Applicant’s admission during a Military Police Investigation that was conducted on 2 August 2001.
011101:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to request a hearing before an Administrative Separation Board, include written statements to the separation and obtain copies of the documents that will be forwarded to the CG, MCB Quantico.
011101:  CO recommends Applicant be separated by reason of misconduct due to drug abuse with an other than honorable discharge. The factual basis for this recommendation was the Applicant’s admission to illegal drug use (marijuana) during an Military Police Investigation that was conducted on 2 August 2001. Commanding Officer’s comments: “Through his actions Private First Class Spinner has proven that he no longer possesses the characteristics of a U.S. Marine, and his continued presence would be detrimental to the good order and discipline of this command.”

011130:  Administrative Separation Board recommends retention of Applicant by a vote of 3-1 after determining that the preponderance of the evidence proves all acts or omissions alleged in the notification.

011211:  CO recommends disapproval of Board’s recommendation that Applicant be retained. CO recommends other than honorable discharge.

020124:  CG MCB Quantico recommends that Applicant be administratively discharged with a general discharge by reason of misconduct due to drug abuse.

020227:  CMC (MMSR-3) recommends discharge for misconduct due to drug abuse with a general, under honorable conditions characterization of service.

020319:  Assistant Secretary of the Navy (M&RA) approved the discharge for misconduct due to drug abuse with a general, under honorable conditions characterization of service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020510 with a general under honorable conditions discharge 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. Mandatory processing for separation is required for Marines who abuse illegal drugs. The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use. Though the Administrative Separation Board recommended retention, the regulation permits the separation authority to forward the case to the Secretary of the Navy via the Commandant of the Marine Corps with a recommendation for discharge. The Assistant Secretary of the Navy (M&RA), the separation authority, on the recommendations of the Commanding General, Marine Corps Base, Quantico, and MMSR-3, directed the Applicant’s discharge by reason of misconduct due to drug abuse with a characterization of service as general . The discharge procedures were proper. Relief denied.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant’s misconduct is clearly documented. Therefore, relief is denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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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