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USMC | DRB | 1999_Marine | MD99-00472
Original file (MD99-00472.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD99-00472

Applicant’s Request
The application for discharge review, received 990217, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before the traveling board closest to Tampa, Florida. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991206. 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- Drug Abuse (Administrative Board required but waived), authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I fill that one reason that my discharge should be changed is because my charge was minor and first offense, and this should be reviewed.

2. I fill also that I was treated unfairly because I know of others that committed the same offense but wasn't given an Other than honorable discharge. They were given another chance.

3. I fill that my moral conduct thus far has been excellent since I have been out of the military.

4. I fill that I should recieved my honorable discharge because I completed 3/4 of my time in the service and also my 6 months of probation.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                920629 - 920811  COG

 Period of Service Under Review :
Date of Enlistment: 920812               Date of Discharge: 951102

 Length of Service (years, months, days):

         Active: 03 02 21
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 35

 Highest Rank: XX3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (10)             Conduct: 3.8 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFEM, Rifle Marksmanship Badge

 Days of Unauthorized Absence: 3

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Drug Abuse [Administrative Discharge Board required but waived], authority: MARCORSEPMAN 6210.5.

 Chronological Listing of Significant Service Events :

920626:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
931019:  Applicant notified eligible but not recommended for promotion to LCpl for the month of November because of my recent involvement with military authority.

951026:  Counseled for deficiencies in performance and conduct. [Alcohol related incident on 930822 for drunk and disorderly conduct and underage consumption.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
931123:  Applicant notified eligible but not recommended for promotion to LCpl for the month of December because of my recent involvement with Military Authorities.

940215:  Counseled for deficiencies in performance and conduct. [Lack of military bearing and unsatisfactory personal appearance.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940405:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0730, 940318 to 1100, 940321 (3 days).
Awarded forfeiture of $217.00 per month for 1 month, restriction and extra duties for 14 days. Appealed. No further information found in service record.
940518:  Counseled for deficiencies in performance and conduct. [That your driving privileges are revoked for a period of two years (940408 to 960408). To add, failure to comply, constitutes a violation of Art. 92 of the UCMJ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940804:  NJP for violation of UCMJ, Article 121:
 Specification: Wrongfully take items from the exchange with a value of $5.20.
Awarded forfeiture of $226.00 per month for 1 month, restriction for 14 days. Not appealed.
941129:  Applicant notified eligible but not recommended for promotion to Corporal for the month of November 1994, because of recent NJP.

950713:  NAVDRUGLAB Jacksonville, FL reported applicant’s urine sample, received 950705, tested positive for THC.
950907:  Applicant signed statement of understanding of treatment for substance abuse at a Veterans Administrative Medical Center.
950919:  Substance abuse evaluation: Diagnostic Impression: Drug abuse (isolated), alcohol abuse.
950921:  NJP for violation of UCMJ, Article 92:
 Specification: Violated Base Order 5560.2J on 18Aug95, to wit: driving on base and state revocation.
Awarded extra duties for 14 days. Not appealed.
951013:  NJP for violation of UCMJ, Article 112a:
 Specification: Wrongfully and willfully use drugs, to wit: marijuana, at an unknown time and place.
Awarded forfeiture of $478.00 per month for 2 months, extra duties for 45 days, reduction to PFC. Forfeiture of pay suspended for 6 months. Not appealed.
951016:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
951016:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
951016:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was based upon nonjudicial punishment of 12 Oct 95 for wrongful use of marijuana.

951020:  SJA review determined the case sufficient in law and fact.

951025:  GCMCA [Commanding General, 2d Marine Division, MarForLant] 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 951102 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).

In the applicant’s issue 1, the Board determined this issue is without merit. In the applicant’s issues concerning a single drug use, the Board found this to be without merit. The applicant implies that a permissive doctrine exists whereby one in the military is allowed a “first offense”. The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds.

Additionally the Board found that the applicant did not have a “clear record”. The applicant had 4 NJP’s, including the violation of UCMJ, Article 112a: drug use.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, 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. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. 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, is considered. The applicant provided one letter of recommendation from his employer as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.

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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