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USMC | DRB | 1999_Marine | MD99-00823
Original file (MD99-00823.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD99-00823

Applicant’s Request
The application for discharge review, received 990524, 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 listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000403. 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. (EQUITY ISSUE) His violations of the UCMJ notwithstanding, this former member opines that his otherwise creditable service period is sufficient to warrant separation under honorable conditions.

2. (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                940129 - 941107  COG

 Period of Service Under Review :
Date of Enlistment: 941108               Date of Discharge: 971121

 Length of Service (years, months, days):

         Active: 03 00 14
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 82

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (7)                       Conduct: 4.2 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, AFSM, NATO Medal

 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 :

940127:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
950906:  Counseled for deficiencies in performance and conduct. [Failure to ensure sufficient funds in my checking account, resulting in multiple bad
checks.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970325:  Drug Evaluation: Applicant screened by Substance Abuse Counselor on 24Mar97 and Medical Officer and found to be drug abuser.

970325:  Counseled regarding deficiencies, specifically, the illegal use of marijuana. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.
970515:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 112A (2 specifications):
         Specification 1: Wrongfully use marijuana between 5Apr96 and 3Mar97.
         Specification 2: Wrongfully introduce and unknown amount of marijuana onto installation used by the Armed Forces on 10Jan97.
         Findings: to Charge I and specification 1 and 2 thereunder, guilty.
         Sentence: Fine of $600.00 for 2 months, confined for 60 days, reduction to Pvt., and a bad conduct discharge.
         CA 970822: Sentence approved and ordered executed except for the BCD.

970828:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your special court-martial conviction of 15 May 1997.
970828:  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.

970828:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was your illegal use and wrongful introduction of marijuana as confirmed by your special court-martial conviction of 15 May 1997.

970912:  SJA review determined the case sufficient in law and fact.

970918:  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 971121 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).

In the applicant’s issue 1, the Board found the applicant’s equity issues to be without merit. The applicant was aware of the Marine Corps’ policy of zero tolerance for drug abuse and chose to violate the policy; this action does not warrant a discharge under honorable conditions. Additionally, the applicant did not submit any documentation to substantiate post-service conduct for the Board to consider. 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.
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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