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NAVY | DRB | 2004 Marine | MD04-01291
Original file (MD04-01291.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD04-01291

Applicant’s Request
The application for discharge review was received on 20040806. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:
1. “ I wish to have my other than honorable discharge changed to a honorable discharge not because I was wrongly accused. I have been out of the Marine Corps for three years now and I am still not able to get a job that has any kind of background check which is limiting me to jobs that just get me by. I have not done drugs since, I got into trouble with the Marine Corps, and I would like to have another chance at a decent career.
I was told by a marine corps recruiter that if I would have gone in front of the board when the charges were first brought up that I could have stayed in the marine corps. I wish that I would have done that, but because of the no tolerance law I thought there would be no sense in trying. All I want is a clean slate again, and even if there are stipulations to get a honorable discharge, I would be willing to do anything to get this part of my life straightened out.”

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)                000629 - 000723  COG
Period of Service Under Review :
Date of Enlistment: 000724               Date of Discharge: 020328

 Length of Service (years, months, days):
         Active: 01 08 05
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 69
Highest Rank: LCpl                         MOS: 3521

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.3 (4)                       Conduct: 3.8 (4)

 Military Decorations: None
Unit/Campaign/Service Awards: LOA

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

 Chronological Listing of Significant Service Events :

000628:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
011129:  NAVDRUGLAB [JACKSONVILLE, FL] reported Applicant’s urine sample, received 011121, tested positive for [THC].
011220:  NJP for violation of UCMJ, Article 112a: On 011121, SNM tested positive for having above the legal limit of THC in his blood stream. The legal limit of THC allowed is 15 NG/ML. SNM tested positive for 22 NG/ML: THC.
 Awarded forfeiture of $300.00 pay per month for 2 months (suspended for 6 months), restriction for 45 days, extra duties for 15 days, reduction to E-2. Not appealed.
020204:  Substance Abuse Screening indicates Applicant was diagnosed with Alcohol abuse 305.00 and Cannabis abuse 305.20 IAW DSM IV. Applicant assigned to the Intensive Outpatient Treatment program for Alcohol abuse and Cannabis abuse, beginning 4 March 2002 at 0800.
020214:  Counseled for deficiencies in performance and conduct. [Illegal drug involvement, marijuana usage identified through urinalysis confirmed by Navy Drug Lab JAXFL msg 292119Z Nov 01.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020219:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NAVDRUGLAB JACKSONVILLE FL message dated 292119Z Nov 01.
020219:  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.
020219:  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 respondent’s incident of illegal drug use as identified in NAVDRUGLAB JACKSONVILLE FL message 292119Z Nov 01.

020315:  SJA review determined the case sufficient in law and fact.
020318:  GCMCA [Commander, 2d Force Service Support Group] 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 20020328 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. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety occurred 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, to enhance employment opportunities, or for good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.

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 P1900.16F), effective 01 September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .
D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:
                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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