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USMC | DRB | 2005_Marine | MD0500703
Original file (MD0500703.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00703

Applicant’s Request
The application for discharge review was received on 20050308. 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 20050713. 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 volunteered information to my senior personal in hopes of being able to correct my error in system and to maintain my honor and integrity.
2. I was not prone to such problems and only had one infraction on an otherwise clean service record.
3. I was not awarded the chance to correct or make amends for the one time problem.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
DD Form 149 Application for Correction of Military Record (unsigned) (undated)
Administrative Discharge Questionnaire (undated) (15 pages)
Certificate of Completion for the reception of the Rites of Initiation, dated April 12, 2002
Certificate of Completion for the reception of the Rite of Confirmation, dated April 12,
2002
Certificate of Attendance at Catholic Faith Classes, dated April 7, 2002
NAVMC 10132 Unit Punishment Book (58) page from Applicant's records, dated
June 03, 2002
Letter from SSgt E. V. M_, Platoon Commander, Basic Marine Platoon, Special Training
Company to Commanding Officer, Special Training Company, dated May 29, 2002
Medical Record Consultation Sheet, Branch Medical Clinic, MCRD San Diego, dated
August 1, 2002 (3 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                010801 - 010927  Failed to graduate*

* Enlistment contract not contained in service record book.


 Period of Service Under Review :
Date of Enlistment: 020114               Date of Discharge: 020830

 Length of Service (years, months, days):

         Active: 00 07 17
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 82

 Highest Rank: Pvt                          MOS: 1800

 Final Enlisted Performance Evaluation Averages :

 Proficiency: 4.2 **               Conduct: 4.2 **

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

** Extracted from SJA’s ltr of 020820

 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 :

020113:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
020529:  Naval Medical Clinic, San Diego, CA reported that Applicant’s urine sample, sent to Quest Diagnostics on 020506, tested positive for Cannabinoids.

020603:  NJP for violation of UCMJ, Article 112a: SNM did, at an unknown place, on or about 06 May 2002, wrongful use of controlled substance (cannabinoids). Awarded forfeiture of $511.00 pay per month for 2 months. Not appealed.

020725:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible being under other than honorable conditions by reason of misconduct due to drug abuse.
020725:  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

020809:  Commanding Officer, Support Battalion, Recruit Training Regiment, MCRD, San Diego, CA recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was wrongful use of cannabinoids. On 6 May 2002, Applicant voluntarily requested a drug screening while at a routine medical appointment and the sample tested positive for cannabinoids and was also confirmed by a drug lab.

020812:  Counselor’s Evaluation and Medical Officer’s recommendation: Applicant was evaluated by a drug and alcohol counselor and a medical officer and did not appear to meet DSM-IV criteria for drug abuse or dependence. Recommend Applicant attend MAAC course and be processed for administrative separation.

020814:  Commanding Officer, Recruit Training Regiment concurs with the Commanding Officer, Support Battalion that Private R_ (Applicant) be separate under other than honorable characterization of service.

020820:  SJA review determined the case sufficient in law and fact.



020827:  Commanding General, MCRD/Western Recruiting Region, San Diego, CA advised the Commandant of the Marine Corps (MMSB) that the Applicant will be discharged 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 20020830 under other 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: The Applicant contends that his discharge was inequitable as he voluntarily admitted his drug abuse (use) in order to maintain his honor and integrity. The Board advises the Applicant that self-referral for drug abuse (use) constitutes confirmation of misconduct and requires a Marine to be processed for administrative separation. There is no exemption or special consideration given for voluntary admission. The record shows that the Applicant admitted, on 020506, his use of marijuana and that such use was confirmed by a drug testing laboratory that same day. Relief on this basis is denied.

 Issue 2: The Applicant further contends that his discharge was inequitable as he had only one infraction on an otherwise clean service record. The NDRB advises the Applicant that, despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Marine Corps in order to maintain proper order and discipline. The Applicant's misconduct is documented in his service record, which is marred by the finding at a nonjudicial punishment (NJP) proceeding on 020603 of violation of UCMJ Article 112a Wrongful use of a controlled substance . This misconduct substantiates the reason for his separation as well as his characterization of service under other than honorable conditions. No other narrative reason for separation or characterization could more clearly describe why the Applicant was discharged. Relief on this basis is denied.

Issue 3: The Applicant also contends that his discharge was inequitable as his command did not provide him a chance to correct or make amends for his misconduct. The Applicant is advised that administrative separation processing for misconduct due to drug abuse (use) does not involve providing the member an opportunity to correct such misconduct. Separation processing is such cases is mandatory. There is no evidence in the record that the Applicant was not treated equitably by anyone involved in the discharge process. The record shows that the Applicant was evaluated by both a drug and alcohol counselor and a medical officer, was advised of the rights afforded to him as part of the administrative separation process, and, having consulted with legal counsel c ertified under Article 27B of the UCMJ, waived his right to present his case before an administrative discharge board. The NDRB found that the Applicant was treated, and that his service was characterized, equitably. Relief on this basis is denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance-free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any documentation for the Board to consider. Relief on this basis 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 P1900.16F), 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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