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USMC | DRB | 1999_Marine | MD99-00474
Original file (MD99-00474.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD99-00474

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 documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000110. 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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Dear Sir(s): I am not sure what status of discharge you will consider me for upgrading. Please advise, if not Honorable, Please review by awarding me a General under Honorable conditions.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Statement from the applicant addressed to the Board of Corrections for Military Records (Naval Records), undated
Nine pages from applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                960112 - 960116  COG

 Period of Service Under Review :
Date of Enlistment: 960117               Date of Discharge: 970211

 Length of Service (years, months, days):

         Active: 01 00 25
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 46

 Highest Rank: Pfc

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (3)                       Conduct: 3.8 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

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 :

960111:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
960814:  NJP for violation of UCMJ, Article 112a:
 Specification: Wrongful use of a controlled substance.
Awarded restriction for 60 days, reduction to Pvt. Not appealed.
960916:  Applicant to Level III treatment for herion dependency.

961011:  Applicant completed Level III treatment.

961018:  Applicant assigned to Level III aftercare counseling.

 961028:  Applicant request for retention on active duty to complete obligated time on contract (01/2000).
961121:  Gunnery Sergeant's letter to Commanding Officer in support of retention.
961122:  Letter from Chief Warrant Officer to Commanding Officer in support of retention.
961202:  Commanding officer's letter in support of retention.

 970121:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
970120:  Applicant advised of his rights and having consulted 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.

970121:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding officer further recommended that the separation be suspended for a period of twelve months. The factual basis for this recommendation was admission to illegal drug usage and your service record book.

970128:  SJA review determined the case sufficient in law and fact.

970128:  GCMCA [Commanding General, 2d Marine Aircraft Wing] 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 970211 under other than honorable conditions for misconduct due to drug abuse (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

The applicant provided a statement for his issue 1; his statement requested that he be considered for a discharge upgrade to either Honorable or General, Under Honorable Conditions. In addition to the statement, the applicant provided character reference letters and a personal letter addressed to the Board of Naval Corrections.
In his letter, the applicant states he made a mistake (used drugs) and now wants forgiveness and a second chance. He states he is no longer using illegal drugs and his discharge is hindering his employment opportunities.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D). 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. No such error or injustice is evident in the applicant’s service record. Relief is 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. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article.
C. 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.

D. 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.



E. 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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