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USMC | DRB | 1999_Marine | MD99-01016
Original file (MD99-01016.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD99-01016

Applicant’s Request
The application for discharge review, received 990721, 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 000310. 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.       I FEEL MY DISCHARGE WAS INPROPER BECAUSE THE AMOUNT OF TIME IN SERVICE THAT I SERVED AND BECAUSE THIS WAS THE ONLY DISRUPTING INCIDENT I WAS INVOLVE IN.
2.       I VIOLATED ART. 112A OF THE UCMJ, WHICH I WAS PUNISHED WITH A REDUCTION IN RANK (E-3 TO PVT) AND 45 DAYS OF RESTRICTION, 45 DAYS OF EPD AND 2/3 OF MY PAY FOR A MONTH.
3.       THOSE ACTIONS AGAINST ME SHOULD HAVE BEEN PUNISHABLE ENOUGH, BUT I WAS THEM DISCHARGED WITH AN UNDER OTHER THAN HONORABLE.
4.       THERE WERE MORE MARINES OB BASE CHARGED WITH THE SAME VIOLATION AND RECEIVED A LESSER PUNISHMENT AND WERE GIVEN A CHANCE TO FINISH THEIR ENLISTMENT. (IF MY VIOLATION ISN’T TOLERATED EVERYONE SHOULD HAVE RECEIVED THE SAME PUNISHMENT.)
5.       I BELIEVE I DESERVED THE RIGHT TO FINISH MY ENLISTMENT BUT I HAVE TO BE RESPONSIBLE FOR MY OWN ACTION. WHAT I’M ASKING FOR IS TO GET MY DISCHARGE UPGRADED TO HONORABLE, SO I COULD USE THE G.I. BILL THAT I CONTRIBUTED TO WHILE IN ACTIVE DUTY. SINCE I’VE BEEN OUT O THE SERVICE I’VE BEEN WORKING A FULL TIME JOB, A PART TIME JOB AND TRYING TO ENROLL INTO COLLEGE. I REALIZE WHAT A BIG MISTAKE I MADE BUT CAN YOU PLEASE REVIEW MY DISCHARGE AND ABLE ME TO UTILIZE MY G.I. BILL SO I CAN MOVE FORWARD IN LIFE.
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: USMC              None
         Inactive: USMCR(J)                930902 - 940123  COG

 Period of Service Under Review :
Date of Enlistment: 940124               Date of Discharge: 970521

 Length of Service (years, months, days):

         Active: 03 03 28
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 35

 Highest Rank: LCPL

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (7)                       Conduct: 4.1 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Rifle Sharpshooter 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 :

930713:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
960401:  Counseled regarding deficiencies, specifically, the illegal usage and a positive testing for controlled substance verified by msg. R220702ZMar96 for THC. Notified of processing for administrative discharge.
960628:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 112a.
         Specification: Did between on a about 19Feb96 to 4Mar96 wrongfully use marijuana.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $580.00, reduced to E-1, 45 days restriction and EPD.
                   CA action 960717: Sentence approved and ordered executed.

960322:  NAVDRUGLAB, Jacksonville, Fl, reported applicant’s urine sample, received 960311, tested positive for THC.

961022:  Alcohol Treatment Facility Director determined applicant was a drug abuser (isolated) and confirmed by medical officer’s diagnois.

961119:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by his summary court-martial of 28 June 1996 for wrongful use of marijuana.
961120:  Applicant advised of his rights and not having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

961125:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was the applicant’s summary court-matrial of 28 June 1996 for wrongful use of marijuana.

970227:  SJA review determined the case sufficient in law and fact.

970307:  GCMCA, CG II MEF, 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 970521 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 rejects the contention that the discharge should be upgraded because this was the only incident the applicant was involved in during his service. The applicant knew the Marine Corps drug abuse policy and blatantly disobeyed it. He abused THC, was caught and administratively discharged in accordance with regulation. Relief denied.

In issues 2 and 3, the applicant believes that the punishment issued by the summary court-martial was sufficient. The Board disagrees. The Marine Corps regulations require all drug abusers to be processed for discharge. Relief denied.

Issue 4 is not germane.

The applicant is not eligible to utilize his G.I. Bill, issue 5, because he was not honorably discharged from the Marine Corps. The NDRB does not provide relief to enable the applicant to receive benefits. Relief denied.

 The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant must be aware that 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, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.


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, DC 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, DC 20374-5023       


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