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Docket No. MD03-01018

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

 ex-Pvt, USMC
Docket No. MD03-01018

Applicant’s Request

The application for discharge review was received on 20030521.  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 discharge review.  The Applicant did not designate a representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040408.  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

No issues were submitted by the Applicant. 

Issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

1.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of the current Other Than Honorable to that of General, Under Honorable Conditions.

The FSM served on active service from February 9, 1993 to February 16, 1996 at which time he was discharged due to Misconduct, Due to Drug Abuse.

As the FSM has submitted documentation in support, we as the representative, ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

The FSM had three years of good service, with letters of commendation and appreciation in his file, along with the letters of counseling regarding the one-time use of illegal drugs.  It appears to this service that probation and rehabilitation would have served in this case, if it had been offered.  This would have allowed the Navy to rehabilitate a good soldier while preserving it’s own good order.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Respectfully,”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 4 and Member 1 copy)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		930106 - 930208	COG

Period of Service Under Review:

Date of Enlistment:  930209		Date of Discharge:  960216

Length of Service (years, months, days):

	Active:    03  00  08
	Inactive:  None

Age at Entry:  19			Years Contracted:  6

Education Level:  12			AFQT:  66

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (9)			Conduct:  4.2 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SWASM (w/1*), AFEM, LoA (2), LoC, JMUA, Rifle Expert

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:

930104:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

930806:	Counseled regarding deficiencies, specifically, failure to adhere to special orders pertaining to conduct for students while at School of Infantry.  Necessary corrective actions explained.  Disciplinary action warning issued.

950726:	NAVDRUGLAB San Diego, CA, reported Applicant’s urine sample, received 950721, tested positive for THC.

951012:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a.
	Specification: Did, at an unknown location, on or about or between 11 July 95 and 18 July 95, wrongfully use THC.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Confinement at Camp Pendleton Base Brig for 30 days, reduced to E-1, and forfeiture of $566.00 pay per month for 1 month. 
	CA action 951012:  Sentence approved and ordered executed.

951106:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse due to your Summary Court-Martial conviction evidencing your drug abuse.

951106:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit a written statement in rebuttal to separation in lieu of a hearing.

951109:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, drug history – THC, marijuana, LSD, if retained, recommend command Level I treatment.

951128:	Applicant advised of treatment at the Veterans Administration Drug and Alcohol Rehabilitation Program, but declined treatment in conjunction with discharge.

960108:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim):  At first glance Private G_ (Applicant)’s record of service is favorable and the decision to separate or retain a difficult one.  However, upon talking to Private G_ (Applicant) the decision to separate him from the United States Marine Corps due to drug use was easy to make and in my opinion prudent and deserved.  Private G_ (Applicant) is a habitual drug user who sees nothing wrong with it and has no intentions to change his opinions or the frequency of use.  Furthermore, since his punishment for this offense his performance has noticeably declined and he has only one desire – to leave the Marines.  To retain Private G_ (Applicant) would adversely impact on the morale and discipline of this unit.  I am hesitant to serve with him in a combat environment.

960131:	SJA review determined the case sufficient in law and fact.

960131:	GCMCA [Commander, 1^st MarDiv (Rein), FMF] 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 19960216 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 error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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, or good conduct in civilian life, subsequent to leaving the service.  Relief not warranted.

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 P1900.16E), effective 18 Aug 95 to 30 Jan 97. 

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.

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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
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