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USMC | DRB | 1999_Marine | MD99-00592
Original file (MD99-00592.rtf) Auto-classification: Denied


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

ex-PVT, USMCR
Docket No. MD99-00592

Applicant’s Request
The application for discharge review, received 990325, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 991213. 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. That the applicant’s meritorious promotion from boot camp, his class standings from Field Radio Operator School, participation in Desert Storm, NDSM, Expert Rifle status and above average Pro/Con marks warrant consideration for his request for discharge upgrade.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
         Ltr of recommendation from Mr. ___ dtd Jan 16, 1999
        Ltr from Mr. ___ dtd Feb 23, 1999
         Ltr from police department ___ dtd Dec 30,1999
         Ltr of recommendation from SSGT ___ dtd 29 Jun 1990
         Applicant’s ltr dtd Mar 15, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMCR             910122 - 910507  HON
         Inactive: USMCR(J)                881215 - 890827  COG Delayed entry program
                  USMCR            890828 – 910121  COG
                         
Period of Service Under Review :
Date of Enlistment: 881215               Date of Discharge: 951215

 Length of Service (years, months, days):

         Active: 00 03 16
         Inactive:

Age at Entry: 18                          Years Contracted: 8

Education Level: 12                        AFQT: 81

 Highest Rank: LCPL

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (10)                      Conduct: 4.2 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Expert Badge, SSDR, MUC, NDSM, LOA

Days of Unauthorized Absence: 00

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 :

940219:  NAVDRUGLAB [Oakland, Ca], reported applicant’s urine sample, received 940126, tested positive for THC, AMPHET, METHAMP.

950213:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by possession of drugs THC, AMPHET, METHAMP.

950213:  Acknowledgement of rights unsigned because PVT ___ departed his last known address and has not been in contact with his unit since Jan 1994.

950530:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was “Possession of the Drugs THC, AMPHET, METHAMP”.

951215:  SJA review determined the case sufficient in law and fact.

951215:  GCMCA [Commander, Marine Forces Reserve] 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 951215 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 NDRB acknowledges the applicant’s accomplishments while in the Marine Corps Reserve, but these do not justify upgrading his discharge. The applicant tested positive for use of the following illegal drugs: THC, AMPHET, and METHAMP. Relief denied.

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 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. 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 [ e.g., Article 86, unauthorized absence for more than 30 days].
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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