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USMC | DRB | 2000_Marine | MD00-00768
Original file (MD00-00768.rtf) Auto-classification: Denied


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


ex-LCpl, USMC
Docket No. MD00-00768

Applicant’s Request
The application for discharge review, received 000525, 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 010116. 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-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

 1. I was discharged with an other than honorable and a clean bill of health. Five years latter I found out my ci-cz cervical spine had been factured (completely broken) in an accident while serving on active duty. I am currently rated 20% disabled and being treated through the VA after a 6 hour transarticular screw fusion operation. I feel my service was not dishonorable by any means.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Medical Evaluation Rating Decision
Copy of Statement in Support of Claim
 Letter from Applicant


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
          Inactive: USMCR(J)                910315 - 910519  COG
Period of Service Under Review :
Date of Enlistment: 910520               Date of Discharge: 930804

 Length of Service (years, months, days):
         Active: 02 02 15
          Inactive: None
Age at Entry: 18                          Years Contracted: 5

 Education Level: 12                        AFQT: 71
Highest Rank: LCPL

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.41 (6)             Conduct: 4.1(6) (discharge marks missing)
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-Pattern of misconduct (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.3.
Chronological Listing of Significant Service Events :

910314:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver not required for use of drugs. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs. Enlistment waiver granted for alcohol use.
911217:  Counseled for deficiencies in performance and conduct. [Concerning my alcohol related incident, specifically my being charged for DUI with a BAC of .13% on 911201 in Thomasville GA.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
920807:  NJP for violation of UCMJ, Article 112a: Wrongfully used marijuana a controlled substance, to wit: Positive Urine Sample Test Message dtd 300700Z July92, violation of UCMJ Article 86: Failed to go at the time prescribed to his appointed place of duty, to wit: Troop Formation Class 1425, 920722.
         Award: Forfeiture of $440.00 per month for 2 months (suspended for 6 months), reduction to E-2. No indication of appeal in the record. (Command elected not to process applicant for discharge due to drug use. Command decided to retain him and get him help for his alcohol problem.)

920817:  Applicant entered Level 3 treatment for alcohol abuse.
920925:  Applicant completed Level 3. Placed on one-year after-care program.

930515:  Applicant involved in motor vehicle accident, alcohol related. This was his 3 rd alcohol related incident. Applicant treated at civilian hospital for minor scrapes and abrasions and released. X-rays taken and show no abnormalities.
930525:  Counseled for deficiencies in performance and conduct. [Poor judgment and lack of responsibility, specifically you are not complying with your prescribed aftercare treatment program] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
930525:  Counseled for deficiencies in performance and conduct. [Concerning my being charged with DUI specifically you were charged with driving under the influence with a BAC of .20 grams]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
930527:  Applicant appeared before Traffic Court Officer for the offense of DUI “.20 GMS resulting a motor vehicle accident”. Applicant's driving privileges were suspended for 12 months beginning 930527 and pending administrative separation board and civilian court date to resolve the DUI.
930615:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and a pattern of misconduct. “The basis for this recommendation is as follows: You have been counselled several times and have one non-judicial punishment for wrongfully use of marijuana.”
930622:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
930712:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote of 5 to 0, found that the applicant had committed misconduct due to minor disciplinary infractions and a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

930715:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infraction and due to a pattern of misconduct.

930722:  SJA review determined the case sufficient in law and fact.
930728:  GCMCA [CG, MCLB, Albany, Georgia] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infraction and a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930804 under other than honorable conditions for misconduct due to a pattern of misconduct (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).
In the applicant’s issue 1, the Board found nothing in his Health Record to substantiate his claim of a fractured ci-cz cervical spine. The Board did find that the applicant had a history of alcohol related incidents (3). He was involved in a motor vehicle accident (MVA) in which he was the driver, with a BAC of .20. He was treated by a local hospital, x-rays were taken with no evidence of any broken bones, and treated for minor scrapes or abrasions.
The applicant was sent to Level 3 Alcohol treatment, which he successfully completed, then was assigned to a year of after-care treatment. The applicant failed to successfully complete this after-care program as evident by his MVA. The applicant did acknowledge his alcohol problem during his administrative board.

The applicant was given all the opportunities to correct his drinking problem, but was unable to do so. He was discharged properly. Relief denied.
It should be noted that the Board found that the applicant had tested positive for THC and received NJP for this offense. He could have been separated for drug abuse, but the command believed that alcohol abuse was the reason for his drug abuse, and gave him a second chance. The applicant failed that second chance. Relief denied.
The following is provided for the applicant’s edification. The NDRB is authorized to consider 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. However, there is no law or regulation that 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 be found to have existed during the period of enlistment in question. No such error or injustice is evident in the applicant’s service record. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. The applicant should produce 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 documentation of good character and conduct. Therefore no relief will be granted. The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.


Pertinent Regulation/Law (at time of discharge)
A. Paragraph 6210, Misconduct , of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 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      


RECORD OF VOTE

 BOARD MEMBER                       CHARACTER                 BASIS/REASON






D. L. KIFFER, COL, USMC           Relief not warranted              Relief not warranted
Presiding Officer




W. BURKE, CDR, USN                Relief not warranted              Relief not warranted
Member




C. F. BUCHHEISTER, LCDR  Relief not warranted              Relief not warranted
USN, Member




N. M. RUSH, CAPT, USMC            Relief not warranted              Relief not warranted
Member




D. L. STOVER-KENDRICK             Relief not warranted              Relief not warranted
COL, USMCR
Recorder



A. Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 26 Jun 89 until 17 Aug 95 , states:
1. Whenever a Marine is involved in misconduct, as described in the following paragraphs, commanders shall process the Marine for separation unless rehabilitation and retention are warranted under the guidelines in paragraphs 6105. Characterization of service normally shall be under other than honorable conditions, but characterization as under honorable conditions (general) may be warranted in some circumstances. For Marines who have completed entry level status, characterization of service as honorable is not authorized unless the Marine's record is otherwise so meritorious that any other characterization clearly would be inappropriate and the separation is approved by the GCMCA. When characterization of service under other than honorable conditions is not warranted for a Marine in entry level status, the separation shall be uncharacterized. Separation processing for a series of minor disciplinary infractions or a pattern of misconduct may not be initiated until the member has been counseled per the guidelines for counseling in paragraph 6105. Counseling per paragraph 6105 and rehabilitation are not required if the basis of separation is commission of a serious offense, a civilian conviction or a similar juvenile adjudication, or drug abuse. The separation authority for misconduct discharges is the GCMCA. Process per provisions of paragraphs 6303 or 6304, as appropriate. Actions on related misconduct separations:
a. Misconduct involving homosexuality shall be processed under paragraph 6207.

 b. Misconduct involving a fraudulent entry shall be processed under paragraph 6204.3.
c. Offenses involving drug abuse shall be processed for separation by reason of the appropriate drug abuse offense in paragraph 6210.5 as well as other applicable reasons in this Manual.

2. Minor Disciplinary Infractions . A Marine may be separated when there is a documented series of at least three minor disciplinary infractions, during the current enlistment, of a nature which have been or would have been appropriately disciplined under Article 15, UCMJ, commanding officer's nonjudicial punishment. If separation of a member in entry level status is warranted solely by reason of minor disciplinary infractions, the processing should be under Entry Level Performance and Conduct. Separation processing may not be initiated until the Marine has been counseled in accordance with paragraph 6105. The procedures contained in paragraph 6304 shall be used if the Marine is recommended for discharge under other than honorable conditions.
3. Pattern of Misconduct . A Marine may be separated where there is a pattern of more serious infractions than in paragraph 6210.2 which includes two or more discreditable involvements with civil and/or military authorities or two or more instances of conduct prejudicial to good order and discipline within one enlistment. Such a pattern may include both minor and more serious infractions. An established pattern of dishonorable failure to pay just debts and/or to contribute adequate support to dependents or failure to comply with orders, decrees, or judgements of a civil court concerning support of dependents may be processed under this paragraph. Separation processing may not be initiated until the Marine has been counseled per paragraph 6105. The procedures contained in paragraph 6304 shall be used if the Marine is recommended for discharge under other than honorable conditions.
4. Sexual Perversion . Sexual perversion is not a specific basis for discharge. Marines involved in the commission of lewd and lascivious acts, sodomy, indecent exposure, indecent act(s) with or assault upon a child, or acts for compensation shall be processed under paragraph 6210.6 or 6210.7, as appropriate.

5. Drug Abuse . For specific guidance see MCO P5300.12, since only a cursory overview is provided below.
a. Commanders may process Marines for illegal, wrongful, or improper use, possession, sale, transfer, distribution, or introduction on a military installation of any controlled substance, marijuana, or other dangerous or illicit drug or the possession, sale, or transfer of drug paraphernalia as defined in SECNAVINST 5300.28. Evidence obtained from an involuntary urinalysis administered pursuant to an inspection under Military Rule of Evidence 313, MCM 1984, or from a search and seizure under Military Rules of Evidence 311-317, MCM, 1984, or incident to an exam conducted for a valid medical reason may be used to characterize a member's discharge as under other than honorable conditions. The procedures contained in paragraph 6304 shall be used when separating a Marine under these provisions, unless a characterization of service more favorable than other than honorable is required.

b. Characterization of service for drug-related offenses more favorable than under other than honorable conditions may only be approved by the CMC or an administrative discharge board. See paragraph 1004.4g for additional guidance.

6. Commission of a Serious Offense

a.       A Marine may be separated for the commission of a serious military or civilian offense under the following circumstances:
(1) The specific circumstances of the offense warrant separation; and

 (2) A punitive discharge would be authorized for the same or a closely related offense under the UCMJ.
b. A military or civilian conviction is not required for discharge under this provision.

 c. Follow the procedures in paragraph 6304 when separating a Marine under this provision.
7.       Civilian Conviction
a. Commanders may process Marines who are convicted by civilian authorities (foreign or domestic) or action taken which is tantamount to a finding of guilty, including similar adjudications in juvenile proceedings, when:
(1) the specific circumstances of the offense warrant separation, and

 (2) a punitive discharge would be authorized for the same or a closely related offense under the UCMJ; or

(3) the sentence by civilian authorities includes confinement for 6 months or more without regard to suspension or probation.

b. Separation processing may be initiated whether or not a Marine has filed an appeal of a civilian conviction or has stated an intention to do so. However, execution of an approved separation should be withheld pending outcome of the appeal or until the time for appeal has passed, unless the Marine has requested separation or the member's separation has been requested by the Commandant of the Marine Corps. Such request must be approved by the Secretary of the Navy who may direct that the member be separated prior to final action on the appeal.

 c. For special provisions regarding characterization of discharge based upon civilian conviction in the case of a reservist, see paragraph 1004.4d.
OPTIONAL FINDINGS

X. Paragraph 1004.4g of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D, effective 890627 until 950817), Limitations on Characterization , states: “In cases of drug abuse, a character of service higher than under other than honorable conditions can only be approved by the CMC, except when awarded by an administrative separation board. An administrative separation board is allowed to characterize service for drug abuse as either under other than honorable conditions or under honorable conditions (general), or honorable. No separation authority may lower the board's recommended characterization of service, therefore;
(1) If a board recommends an under other than honorable characterization, the separation authority may agree and take final action or recommend a higher characterization of service to the CMC (MMSR-3) for final approval.
(2) If the board recommends a general characterization of service, the separation authority may agree and take final action or recommend an honorable characterization to the CMC (MMSR-3) for final action.

 (3) If the board recommends an honorable characterization of service, the separation authority should take final action.

(4) Regardless of the board's recommended characterization of service, if the separation authority recommends retention, the case must be forwarded to the CMC (MMSR-3) for final action.”

X. Paragraph 1004.3c of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D, effective 890627 until 950817), Types of Characterization , states with regard to an under other than honorable conditions characterization:
“(1) This characterization may be issued when the reason for separation is based upon behavior or omission that constitutes a significant departure from the conduct expected of a Marine. (Examples of factors that may be considered include, but are not limited to, the use of force or violence to produce serious bodily injury or death, abuse of special positions of trust, disregard of customary superior-subordinate relationships, acts or omissions that seriously endanger the health and safety of others, and drug abuse.)
(2) This characterization is authorized only if the member has been afforded the opportunity to request an administrative board, except in cases of separation in lieu of trial by courts-martial.

 (3) When a Marine serving in paygrade E-4 or above is administratively separated with an other than honorable characterization of service, the Marine shall be administratively reduced to paygrade E-3, such reduction to become effective upon separation.”

X. Table 1-1, Characterization Of Service, of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D, effective 890627 until 950817), Rule 8 , states that if a Marine is being separated under a provision of chapter 6, characterization of service is as directed by the separation authority.

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