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USMC | DRB | 2006_Marine | MD0600654
Original file (MD0600654.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD06-00654

Applicant ’s Request
The application for discharge review was received on 20060410 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) and the Narrative Reason for Separation be changed to “ Entry level separation .” 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 20070118 . 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 and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.





PART I - ISSUES AND DOCUMENTATION

Decisional Issues
Equity: Isolated incident.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
E-mail between NPRD Referrals and SMB Manpower MMSB, dated February 3, 2006 (2 pages)
 Applicant ’s Standard Form 180, Request Pertaining to Military Records, dated January 30, 2006
 Applicant ’s DD Form 214 (Service 2)
One page from Applicant ’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19980213 - 19980222       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19980223              Date of Discharge: 20010427

Length of Service (years, months, days):

 Active: 03 02 05
         Inactive: None

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

Age at Entry: 1 9

Years Contracted: 4
Education Level: 12                                 AFQT: 38

Highest Rank: Cpl                                   MOS: 3381 (Food Service Specialist)

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 ( 8 )                                 Conduct: 4.3 (8 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Letter of Appreciation, Sea Service Deployment Ribbon, Rifle Marksmanship Badge, Pistol Marksmanship Badge.


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 :

980212:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
980213 :  Pre-service waiver ( M G D ) granted.
001012:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 001003, tested positive for THC.

 001025 :  NJP for violation of UCMJ, Article 112a: Use a controlled substance (THC).
         Award: Forfeiture of $ 630.00 p er month for 2 month s , restriction and extra duty for 45 days, reduction to E- 3 . Not appealed.
001127:  Consultation Sheet, Alcohol Treatment Facility, Camp Lejeune, NC by M. A. P_, CDR, MSC, USN, Clinical Psychologist: Applicant evaluation found drug abuse, isolated incident. Recommendation: No treatment indicated at this time. Individual is found psychologically fit for full duty and returned to same. Recommend SNM be processed for administrative separation per MCO P1900.16.
001127:  Applicant signed statement of understanding of treatment for substance abuse at a VA Medical Center.

001129:  Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was NAVDRUGLAB Jacksonville FL message R 122044Z Oct 00. Applicant informed the least favorable character of service possible was as under other than honorable conditions.

001130 :  Applicant advised of rights and having elected not to consult with counsel, elected to appear before an Administrative Discharge Board.
010306 :  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct based on drug abuse , that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

UNDATED :         Commanding Officer recommended Applicant ’s discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: “ In making this recommendation, I have considered the respondent does not have any other nonjudicial punishments, nor derogatory page 11 entries. However, I am not convinced after my interview that LCpl A_( Applicant ) has potential for future honorable service. ”
010410 :  SJA review determined the case sufficient in law and fact.
010412 :  GCMCA, Commanding General, 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 20010427 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 Board presumed regularity in the conduct of governmental affairs (D).
Equity – Isolated incident. Whenever a member is involved in misconduct due to drug abuse, on the first offense, commanders shall process the member for administrative separation. There is clear evidence in the service record that the Applicant used illegal drugs. Indeed, the Applicant received nonjudicial punishment on 20001025 for violation of UCMJ Article 112a Wrongful use of a controlled substance (marijuana). While there is no other misconduct documented in the Applicant’s records, a single instance of misconduct due to drug abuse may be used to characterize a member’s discharge under other than honorable conditions. This conduct, which forms the primary basis for determining the character of service, falls well below that required for an upgrade in characterization of service. Relief not warranted.

The Applicant requests a Narrative Reason for Separation change to “Entry level separation.” Under its responsibility to examine the propriety and equity of the Applicant's discharge, the NDRB will change the reason for discharge if such a change is warranted. The summary of service clearly documents that drug abuse was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Therefore changing the Narrative Reason for Separation would be inappropriate. 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 post-service accomplishments or any other evidence related to the 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 P1900.16E), effective 31 Jan 97 until 31 August 2001.

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 .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .



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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