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USMC | DRB | 1999_Marine | MD99-01066
Original file (MD99-01066.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD99-01066

Applicant’s Request
The application for discharge review, received 990803, 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 000720. 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 received an other than honorable discharge on Nov 10, 1997 from the Marine Corps on Camp Lejuene, N.C. before I was discharged my MOS was 0311 Infantry.

2. When I moved back to the civilian world, I've worked various jobs. I could never find any other job that I had as much passion for as the Marines, afterwards I realized when I left I made a large mistake and abandoned the one thing I've always wanted to be a Marine.

3. I would like to rectify my mistake and reenlist and not make the same mistake again. Being in the Marine was a lifelong dream when my dad told me about the old Corps. There has been a fire burning deep inside me to go back , but I didn't think I would be accepted until I had talked to the recruiter.

4. The reason for my discharge was because I failed a urinalysis for use of marijuana. I realized that I had gotten in with the wrong crowd of people off base, if I am able to re-enlist I possibly will make the Marines a career. I definitely learned my lesson the hard way.

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: USMC              None
         Inactive: USMCR(J)                940709 - 950619  COG

 Period of Service Under Review :
Date of Enlistment: 950620               Date of Discharge: 971105

 Length of Service (years, months, days):

         Active: 02 04 16
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 51

 Highest Rank: LCPL

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3                           Conduct: 4.1

Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR.

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 :

970806:  Summary Court-Martial for violation of UCMJ, Article 112a: Wrongful use of marijuana on or about 970717.
 Sentenced to CHL for 30 days, forfeiture of $553.50 per month for 1 month, reduction to E-1.
CA (970806) Sentence is approved and ordered executed.
 970818:  Medical officer's evaluation for drug abuse found the applicant to be a drug abuser, recommended administrative separation.

970822:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse.
970822:  Applicant advised of his rights and having elected not to consult 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.

970822:  Commanding Officer, 3d Battalion, 2d Marine, 2d Marine Division recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse. The factual basis for this recommendation was illegal drug use, identified in his positive urine sample confirmed by NavDrugLab Jacksonville, FL msg 251713Z Jul 97, and upon subsequent interview with the respondent in which he indicated he no longer wanted to be a Marine.

970826:  Commanding Officer, 2d Marine recommending discharge under Other Than Honorable conditions by reason of misconduct due to Drug use.

970905:  SJA review determined the case sufficient in law and fact.

971022:  GCMCA [Commanding General] 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 971105 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).

Applicant’s issues 1 and 2 are non decisional.

In the applicant’s issues 3 and 4, t he NDRB determined these issues have no merit. The Board is under no obligation to upgrade an individual’s discharge for the purpose of allowing him/her to re-enlist into any branch of the armed forces. The Board reviews each case for propriety and equity and if an error is found, determines if relief is appropriate and the type relief to be awarded. The applicant’s discharge was proper and equitable. The Board also considers post-service factors to determine if the member’s misconduct was out of character and his/she is deserving of relief. The applicant did not provide any documentation to show he is a person of good character and living a drug free life. There are no compelling reasons for the Board to approve relief in this case. Therefore, relief is 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). 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 provide 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 relief 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 at the NDRB within 15 years from the date of discharge. Legal counsel is strongly recommended but not required.




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 112a, wrongfully use marijuana].
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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.af.mil ”.

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
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      

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