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USMC | DRB | 2006_Marine | MD0600132
Original file (MD0600132.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD06-00132

Applicant’s Request
The application for discharge review was received on 20050922. The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060824 . 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 by reason of misconduct due to drug abuse.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“My discharge was inequitable because it was based on one isolated incident in 18 months of service that I had no control over and was t old that I was accountable for.
Accusat ions were made overseas, away f r o m U.S. jurisdiction, no counsel or representation was offered or given. Additional drug screening was denied twice. ”

Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):

          Inactive: USMCR (DEP)    20030114 - 20031207      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20031208             Date of Discharge: 20050526

 Length of Service (years, months, days):

 Active: 01 05 19
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 18

 Years Contracted: 4

 Education Level: 12                                 AFQT: 53

 Highest Rank: LCpl                                  MOS: 0331

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 ( 2 ) *                                Conduct: 3.1 ( 2 ) *

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Global War on Terrorism Service Medal, National Defense Service Medal, Rifle Qualification Badge (Sharpshooter).
*Partially extracted from CO’s NJP of 050403.


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 :

030113:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
03111 8 :  Pre-service waiver for failure to meet physical standards due to drug (cannabis) use granted.
031208:  Pre-service waiver s for medical standards, drug use and serious offense(s) granted.
050329:  NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 050324, tested positive for cocaine and marijuana.

050403:  NJP for violation of UCMJ, Article 112a (2 specs):
 Specification 1: SNM tested positive for the drug cocaine on a random urinalysis during the period of 21 Mar 05.
          Specification 2: SNM tested positive for the drug THC (marijuana) on a random urinalysis during the period of 21 Mar 05.
         Award: Forfeiture of $692 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Not appealed.

 050406:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. Applicant informed the least favorable character of service possible was under other than honorable conditions.

050406:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

050422:  Substance Abuse Rehabilitation Program, Naval Hospital, Marine Corps Base, Camp Lejeune, NC: Applicant refused screening regarding substance abuse. Applicant informed of location of nearest Veterans’ Affairs Medical Center nearest his home of record.

050424:  Commanding Officer, Battalion Landing Team 2/8, 2 6 th Marine Expeditionary Unit (SOC) , recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to illegal drug use. The factual basis for this recommendation was violation of Article 112a, wrongful use of the controlled substances, cocaine and marijuana, resulting in b attalion nonjudicial punishment . Commanding Officer’s comments: “I believe that the retention of this Marine would set the wrong example for all the Marines of this unit and adversely impact the good order and discipline and combat readiness of this command. Additionally, Private First Class G_(Applicant)’s illegal use of cocaine and marijuana shows his lack of the qualities and the attributes expected of a Marine, and I have no compelling reason to believe this Marine would not involve himself in future drug related activity. That said, I recommend that he be separated from the Marine Corps. Furthermore, due to the nature of the UCMJ offense under these circumstances, I do not believe this Marine should serve in a combat zone, and I am terminating his deployment status. Based upon the enclosures, it is my opinion that should an administrative separation be granted a characterization of service of other than honorable conditions is warranted.”
050510:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

050516:  SJA review determined the case sufficient in law and fact.

050516:  GCMCA, Commanding General, II Marine Expeditionary Force , 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 20050526 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions. 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 (B and C).

The Applicant contends that his discharge was inequitable because it was based on “one isolated incident in 18 months of service.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by nonjudicial punishment proceedings for violations of Article 112a of the UCMJ. The Applicant’s conduct was a violation of the special consideration given the Applicant at his enlistment; an enlistment that required waivers for the Applicant’s prior drug use, failure to meet enlistment standards and previous infractions of civilian law. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant implies that he had no control over his infractions of the UCMJ and that “no counsel or representation was offered or given. ” The Applicant also indicates that “additional drug screening was denied twice.” The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. Neither the evidence of record nor the document submitted by the Applicant demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Further, the evidence of record shows neither that the Applicant refused nonjudicial punishment nor appealed the result of his NJP. Regarding the Applicant’s administrative processing, the Applicant waived his right to consult with counsel on 20050406. Subsequently, on 20050510, the Applicant waived his rights to consult with counsel and receive documents forwarded to the Commanding General, II Marine Expeditionary Force, supporting the Applicant’s discharge. On 20050422, the Applicant signed a voluntary “Refusal of Screening” for substance abuse at Naval Hospital, Marine Corps Base, Camp Lejeune. The Applicant’s issues are without merit. Relief 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. Representation at a personal appearance hearing is recommended but not required.



Pertinent Regulation/Law (at time of discharge)

 A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective
01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.
B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

C. 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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