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USMC | DRB | 1999_Marine | MD99-00456
Original file (MD99-00456.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD99-00456

Applicant’s Request
The application for discharge review, received 990210, requested that the characterization of service on the discharge be changed to honorable. The applicant requested 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 000614. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. 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.

The NDRB did note an administrative error on the original DD Form 214. Block 18, Remarks, should contain the following Statement: "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 90 AUG 26 UNTIL 95 OCT 21", and Block 28, Narrative Reason for Separation, should read: "MISCONDUCT" vice "DRUG ABUSE". The original DD Form 214 should be corrected or reissued as appropriate.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My conduct and efficiency rating/behavior and proficiency marks were mostly pretty good.

2. I received awards and decorations.

3. I received letters of commendation.

4. My record of promotions showed I was generally a good servicemember.

5. There were other acts of merit.

6. I had a prior Honorable Discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Military Fitness Reports (6)
Awards Record Page (1070)
Summary of Testimony of Respondents Witness #1 (Major S_)
Summary of Testimony of Respondents Witness #2 (Major W_)
Summary of Testimony of Respondents Witness #3 (MGYSGT A_)
Summary of Testimony of Respondents Witness #4 (MSGT C_)
Summary of Unworn Statement from Respondent (Applicant)
Dissenting Opinion concerning discharge from MGYSGT W_)
Letter of Deficiency concerning discharge from applicant's defense counsel dated 16 Mar 98
PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              900827 - 951020  HON
         Inactive: USMCR(J)                891106 - 900825  COG

 Period of Service Under Review :
Date of Enlistment: 951121               Date of Discharge: 980522

 Length of Service (years, months, days):

         Active: 02 06 02
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 53

 Highest Rank: SGT

 Final Enlisted Performance Evaluation Averages : All performance reports were available to the Board for review.

 Military Decorations: NAM

 Unit/Campaign/Service Awards: Rifle Expert, Pistol Expert, MM(9), NDSM, SSDR(w/Star), GCM, MUC, Certification of Commendation (2), OSR(w/Star), Scroll of Appreciation

 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 :

891101:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
951021:  Reenlisted at MCSSS MCB Camp Lejuene, NC.

 980115:  NJP for violation of UCMJ, Article 112a: did test positive for THC from an urinalysis sample taken during a command directed testing.
 Awarded reduction in pay grade to E-4, forfeiture of $716.00 per month for 2 months, restriction for 30 days and extra duties for 15 days (suspended 60 days). Not appealed.
980116:  Counseled regarding deficiencies, specifically, usage of marijuana, identified through the Biochemical Testing Center. Advised that processing for administrative separation for cause is mandatory per MCO P1900. Applicant chose not to make a statement.
980316:  Letter of deficiency submitted by Applicant's Defense Counsel concerning the Administrative Discharge Board. [Provided by the Applicant]

980509:  Commander, U.S. Marine Corps Forces, Atlantic directs discharge under other than honorable conditions by reason of misconduct due to drug abuse.

[DISCHARGE PACKAGE NOT AVAILABLE - NOT IN RECORD, APPLICANT DOES NOT HAVE, COMMAND DOES NOT HAVE]


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980522 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).

The applicant’s issues highlight his service to the Marine Corps. The Board agrees with the applicant, prior to his conviction for use of THC, that he had had a very successful career. However, the applicant tested positive for THC, a drug that he knew was illegal. Although the discharge package was missing, the Board must assume regularity in processing. He has provided no information that would indicate that an error or injustice occurred during. Relief denied.

 The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant must be aware that 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 the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.


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 Present.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                   Washington, D.C. 20374-5023     

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