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USMC | DRB | 1999_Marine | MD99-00976
Original file (MD99-00976.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD99-00976

Applicant’s Request
The application for discharge review, received 990713, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000410. 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. (EQUITTY ISSUE) His violation of the UCMJ not with standing, 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:
Copies of DD Form 214 (2)
Copies of Discharge Information (8pgs)
Copies of NAVDRUGLAR Report (2)
Copy of NJP (2)
Copy of Office Hour Guide (3pgs)
Copy of Office Report
Copy of Observation Procedures
Reference Letters (2)
Letter from applicant
Employment Reference Letter
PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                930111 - 930131  COG

 Period of Service Under Review :
Date of Enlistment: 930201               Date of Discharge: 960809

 Length of Service (years, months, days):

         Active: 03 06 09
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 38

 Highest Rank: CPL

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (10)                      Conduct: 4.1 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NDSM, MM, COA, LOA, Rifle Expert Badge

 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 :

921203:  Applicant acknowledges pre-service drug use, marijuana. No indication of waiver. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

960606:  NAVDRUGLAB [SAN DIEGO, CA], reported applicant’s urine sample, received 960531, tested positive for Methamphetamine {EXTRACTED FROM CASE FILE}.
960626:  NJP for violation of UCMJ, Article 112a: Wrongfully and knowingly used a controlled substance.
 Awarded forfeiture of $450.00 per month for 2 months, restriction and
extra duties for 45 days, reduction to PFC. Not appealed.
960627:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis test for the use of Methamphetamine {EXTRACTED FROM CASE FILE}.
960628:  Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights {EXTRACTED FROM CASE FILE}.

960703:  Medical officer's evaluation for drug/alcohol abuse found the applicant to be dependent on methamphetamine, nicotine, alcohol, and marijuana, recommended Level III treatment. {EXTRACTED FROM CASE FILE}

960703:  Commanding Officer, Headquarters Battalion recommended discharge under other than honorable conditions by reason of misconduct, specifically, drug abuse.

960722:  Commanding Officer, Marine Corps Logistics Base, Barstow directed discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was a positive urinalysis test for the use of Methamphetamine. {EXTRACTED FROM CASE FILE}
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960809 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 representative submitted as issue 1: (EQUITY ISSUE) This former member opines that his otherwise creditable service warrants an under honorable conditions discharge. The Board disagrees. The applicant knowingly took a drug that he knew was illegal. Relief denied.

The applicant’s representative submitted the following as issue 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. 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
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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