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USMC | DRB | 2000_Marine | MD00-00787
Original file (MD00-00787.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD00-00787

Applicant’s Request
The application for discharge review, received 000605, 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 001214. 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 (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. My name is (applicant), I have been a resident of Joliet, Il for 31 years. I graduated from Joliet Central High School class of 86. I enlisted in the Marines in 1989, I was really looking forward to changing my life and being all that I could be and serve my country. I am asking that you consider the fact that addiction (alcohol or drugs) is a disease that is noted by the Federal Government. The fact that it is a disease that is cunning, baffling, and even so powerful it came back upon me during my tour of duty. I am not making excuses just stating the facts. I was powerless of my addiction, please consider that in your decision concerning the up-grade of my discharge. My M.O.S. was a 1345. I loved serving my country and doing all the good things and the adventures it was an experience and a great honor to serve my country. At the end of my career when I came back to the states from Okinawa, Japan to 29 Palms, California, I was once again influenced by drugs, and I was discharged for that reason. Since my discharge I have been troubled by drugs, I have been incarcerated twice. I had the option of jail or rehab so I chose to go to Cornell Intervention Rehab in Woodridge, IL. It has shown me a great deal about being an addict, now I am over whelmed by by being clean, clean and sober. I have been clean and sober since May 23, 1999, I have even quit smoking cigarettes. I am looking forward to getting a good job. All I am asking of you, is to please help me enhance my discharge from an "Other than Honorable" to an "Honorable" so I would have the opportunity to advance my career and life to a new level, to get a good job and start a family to be proud.

 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)                890531 - 890605  COG

 Period of Service Under Review :
Date of Enlistment: 890606               Date of Discharge: 920605

 Length of Service (years, months, days):

         Active: 03 00 00
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (9)                       Conduct: 4.1 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: Letter of Appreciation (2), NDSM, SSDR

 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 (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

890609:  Applicant tested positive for THC.

 890801:  The CG, MCRD/WRR San Diego waiver control 8909-1898 of 890703 waived the defect in this case and authorized applicant's retention in the USMC.

890801:  Drug usage confirmed by urinalysis testing 890609. Ref, NAVDRUGLAB, San Diego, CA message 202147Z Jun89.
890801:  Counseled for deficiencies in performance and conduct. [Illegal drug use confirmed by urinalysis testing on 890609 by NAVDRUGLAB, San Diego, CA message 202147Z Jun89, for use of THC. Applicant was interviewed and found not dependent on THC by a medical officer]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
901030:  Counseled for deficiencies in performance and conduct. [Your inability to manage your personal finances as evidenced by your uttering of worthless checks in excess of $800.00.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910402:  Counseled for deficiencies in performance and conduct. [Operation of a POV without a license.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910919:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Fail to go to prescribed place of duty on 0530, 4Sep91, to wit: PT formation.
Specification 2: Fail to go at the time prescribed to morning PT on 0530, 4Sep91.
Violation of UCMJ, Article 91:
Specification: Willfully disobey the order of Cpl _ to clean and wax the passageway on 1800, 3Sep91.
Violation of UCMJ, Article 92:
Specification: Disobey MARCORBASESJAPANO P11240.1A, to wit: drive a POV with a revoked operator's permit on 1825, 17Aug91.
Awarded forfeiture of $420.00 per month for 2 months, restriction and extra duties for 30 days, reduction to PFC. Forfeiture and extra duty suspended for 2 months. Not appealed.
920327:  NJP for violation of UCMJ, Article 92:
 Specification: Violate a lawful general regulation, by having a female in your room over night on 18Mar92.
Awarded forfeiture of $250.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt. Forfeiture suspended for 6 months. Not appealed.
920327:  Counseled for deficiencies in performance and conduct. [Convicted by civil authorities for DUI (BAC .15). Frequent involvement with military/civilian authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920415:  Vacate suspended forfeiture of $250.00 for 2 months awarded at CO's NJP dated 920327.
920422:  NJP for violation of UCMJ, Article 86 (3 specs)
 Specification 1: Failure to go at the time prescribed to appointed place of duty on 4Apr.
Specification 2: Failure to go at the time prescribed to appointed place of duty on 5Apr.
Specification 3: Failure to go at the time prescribed to appointed place of duty on 12Apr.
Awarded forfeiture of $200.00 per month for 2 months, restriction and extra duties for 30 days. Not appealed.
920429:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
920429:          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.

920429:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was your three NJP's and positive urinalysis in addition to repeated page 11 counseling without corrective action on your part. [Marine CO’s must list specific reasons for separation, not just “by reason of misconduct due to drug abuse”.]

920518:  SJA review determined the case sufficient in law and fact.

920520:  GCMCA [Commanding General, 3d Marine Aircraft Wing] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

 920604:  NJP for violation of UCMJ, Article 86:
 Specification: Absent himself from restricted muster from 1800, 31May92 to 0700, 1Jun92.
Awarded forfeiture of $300.00 per month for 1 month, restriction for 1 day. Forfeiture suspended for 1 day. Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920605 under other than honorable conditions for misconduct due to a pattern of misconduct (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 issues, the Board found no evidence of addiction. In fact on the occasion of a medical examination to determine dependence, the medical finding was “not dependent”. However, the Board did find substantial evidence of willful disobedience of lawful orders and regulations. This Board found the Marine Corps offered the applicant the opportunity to correct his behavior deficiencies, by affording him, prior to his first NJP, three separate counseling sessions, for offenses which were punishable under law by NJP or court-martial. Failing to heed the advice offered in the counselings, the applicant consistently displayed a lack of regard for good order and discipline over the three years of his unsuccessful and incomplete enlistment. Notified of the intention of his commanding officer to process him for discharge under less than honorable conditions, the applicant refused counsel and waived his rights to contest the discharge. The applicant’s blatant disregard for military order continued to the day he was discharged as evidenced by his absenting himself even after his discharge had been directed executed. Therefore, relief is denied.
The NDRB recognizes that serving in the Marine Corps is very challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.

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's efforts need to be more encompassing than those provided. The applicant should have produced 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 sufficient 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      


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