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NAVY | DRB | 2004 Marine | MD04-00090
Original file (MD04-00090.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00090

Applicant’s Request
The application for discharge review was received on 20031017. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions or entry level separation. The Applicant requests a documentary record 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 20040624. 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 (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 based on one isolated incident in my approximately nine months of service. The circumstances were as follows.

After returning from my first leave, I tested positive for use of marajunia. I had attended a friends wedding, and although some people were smoking marijuana, I did not. I had been drinking, so I asked several people who had been there if they saw me smoking marijuana, and none had.

I advised my Gunnery Sergeant that I wanted to fight the results of the urine test, based on a false positive reading. I asked for guidance and was advised I could only see an attorney after pleading either guilty or not guilty to the charges.

I was told by my superiors that others had fought the results and instead of just being discharged, they received several months in the brig and were discharged anyway.

Under this advice I did not fight the charges and received an “under than honorable conditions discharge”, with a narrative reason of misconduct due to drug abuse.

This occurred 10 years ago, I was very young and I believe I received very bad advice from my supperiors.and was denied legal council.

I am disappointed in myself for letting this happen. I have disappointed the Marine Corps, and my family.


I would greatly appreciate it if my discharge could be upgraded to a General Discharge or to an Entry Level Separation{ if the time frame will allow).

I have no intention of fitting for any veterans benefits programs, and wilt sigh a waiver to any such benefits.

Your prompt attention to this matter will he greatly appreciated.”







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: None
         Inactive: USMCR(J)                921215 - 930301  COG

 Period of Service Under Review :
Date of Enlistment: 930302               Date of Discharge: 931210

 Length of Service (years, months, days):

         Active: 00 09 09
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 61

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (3)                       Conduct: 4.0 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 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 :

921213:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
931005:  NAVDRUGLAB [Jacksonville, FL], reported Applicant’s urine sample, received 930930, tested positive for THC.

931014:  NJP for violation of UCMJ, Article 112a: On or about 930924, wrongfully used THC.
 Awarded forfeiture of $407.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt. Not appealed.
931021:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by testing positive for THC.
931022:  Applicant advised of 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.
931026:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

931119:  SJA review determined the case sufficient in law and fact.

931122:  Medical evaluation for drug abuse found the Applicant to be a cannabis abuser, and alcohol dependent.

931123:  GCMCA [CG, 2d FSSG] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

931209:  Applicant declined VA treatment for substance dependence upon discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931210 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. Drug abuse warranted processing for separation. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Applicant’s statement does not refute the presumption that he was properly afforded all due rights concerning the evidence of his drug use and resulting administrative separation. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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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