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NAVY | DRB | 2004 Marine | MD04-00258
Original file (MD04-00258.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD04-00258

Applicant’s Request
The application for discharge review was received on 20031125. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. 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 20040720. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an impropriety in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was four to one that the character of the discharge shall change. The discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/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. “I request that my discharge be upgraded, so that I may join the Marine Corps reserve in our nations time of need. The issue is “Drug Abuse”- which is unfounded.
Urinalysis returned – negative
No warning or treatment was given/or offered.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Employment reference letter (2 copies)
Certificate of Apprenticeship in the craft of Plumber/Steamfitter
Certificate of perfect attendance (5 years)
Drug test submittal sheet with cover letter from Applicant
Seven pages from Applicant’s service record
Letter from BCNR to Applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                901227 - 911201  COG

 Period of Service Under Review :
Date of Enlistment: 911202               Date of Discharge: 931123

 Length of Service (years, months, days):

         Active: 01 11 22
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (4)                       Conduct: 4.4 (4)

 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 :

901227:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
930831:  Medical evaluation for drug abuse found the Applicant to be cannabis dependent and an alcohol abuser.

930917:  SACO/DACO evaluation. Applicant diagnosed with alcohol abuse and drug dependence.
930927:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
930927:  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.

930927:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was the Applicant’s self referral for drug abuse.

931026:  SJA review determined the case sufficient in law and fact.

931104:  GCMCA [CG, 2d FSSG] 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 19931123 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 not proper, but was otherwise equitable (C and D).

Issue 1. The basis for the Applicant’s discharge was the Applicant’s self-referral for drug abuse. OPNAVINST 5350.4B (E) states that separations based solely upon self-referral disclosures and medical diagnosis of the member as drug-dependent may not be characterized as under other than honorable. The Board found no indication of independent evidence exclusive of the self-referral for drug abuse that would warrant a characterization of service of under other than honorable conditions. Therefore, the Board found that the Applicant’s service is properly characterized as general (under honorable conditions). Relief granted.


 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.

E. Chief of Naval Operations Instruction 5350.4B of 13 September 1990 (Alcohol and Drug Abuse Prevention and Control), enclosure (5), paragraph 5, Disciplinary and Administrative Action Not Precluded.

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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