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USMC | DRB | 2000_Marine | MD00-00811
Original file (MD00-00811.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD00-00811

Applicant’s Request
The application for discharge review, received 000609, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Convenience of the Government. The applicant requested a documentary record discharge review. The applicant did not designate a 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, 4 to 1, was that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

The NDRB did note an administrative error on the original DD Form 214. Block 12a, Date Entered AD This Period, Separation should read: “90 09 11” vice “90 09 17”. The original DD Form 214 should be corrected or reissued as appropriate.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. The punishment I received was more drastic than other's involved in the same case. Out of 12 individuals, unfortunately I was the only one discharged. I believe it is an injustice for me to continue to suffer the adverse consequences of a negative discharge.

2. My reason for discharge states "Drug Abuse". I have never used an illegal substance other than the steroids which was a one use incident which is supported by the urine and blood screen that I have enclosed. This drug screen was taken at the time of the incident. If I had not disclosed the fact that I had tried the steroids there would be no evidence to support this claim. Buit I know it to be in my best interest to be honest.

3. I strongly believe that my ability to serve productively in the Marine Corps was greatly impaired by my youth and immaturity also effecting my decision making.

4. Although thee is other offenses in my S.R.B. they were minor offenses. I tried to be the best Marine I could be and I feel that I was a great marine other than my infractions.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character Reference letter from Applicant's Spouse dated May 9, 2000
Character Reference letter from E_ C_, Senior Associate Pastor, Calvary Temple Church, dated May 2, 2000
Character Reference letter from W_ D. C_, Probation Officer dated April 18, 2000
Character Reference letter from co-worker, A_ C_, Community Outreach Coordinator dated 04-13-00
Character Reference letter from C_ A. T_, Prosecuting Attorney, dated May 9, 2000
Character Reference letter from T_ L. B_, Dist Exec, Lasalle Council, Boy Scouts of America undated
City of Mishawaka Police Records Check dated May 10, 2000
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                890922 - 900910  COG

 Period of Service Under Review :
Date of Enlistment: 900911               Date of Discharge: 930827

 Length of Service (years, months, days):

         Active: 02 11 17 (Doesn't exclude lost time.)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 71

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (12)             Conduct: 3.9 (12)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, LOA(2), LOC

 Days of Unauthorized Absence: 7

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

 Chronological Listing of Significant Service Events :

890629:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
910102:  Unauthorized absence since 0001, 910102, failed to report to SOI, MCB, Camp Pendleton, not late than 2400, 910101.

910108:  Surrendered to Inspector-Instructor, Company "B", 6 th Engineer Support Battalion, 4 th Force SSG, FMF, USMCR Armed Forces Reserve Center, South Bend, ID at 0800, 910108, and transferred to SOI, MCB, Camp Pendleton, CA no later than 2400, 910110.

910122:  NJP for violation of UCMJ, Article 86: unauthorized absence from 0001, 910102 to 0800, 910108 (7 days).
 Awarded forfeiture of $95.00 per month for 1 month, restriction and
extra duties for 14 days (14 days of extra duty suspended for 6 months). Not appealed.
920506:  NJP for violation of UCMJ, Article 92 (2 Specs):
Spec 1 - on or about 2112, 7 Apr 92, was derelict in the performance of those duties in that he failed to report to the Desk Sgt and the Watch commander that he expelled the contents of a fit extinguisher;
Spec 2 - on or about 2112, 7 Apr 92, was derelict in the performance of those duties in that he failed to respond to the fire alarm activation.
Awarded forfeiture of $440 per month for 1 month, restriction and extra duties for 45 days, reduction to E-2. Reduction to PFC and 15 days restriction and extra duties suspended for 6 months unless sooner vacated. Not appealed.
920918:  Reduction to E-2 imposed and suspended on 920506 for period of 6 mos is vacated and punishment ordered executed.
930106:  Special Court Martial
 Charge I: violation of UCMJ, Article 92: was derelict in the performance of his duties while assigned as a military policeman on 920912 by willfully failing to report to proper authorities about a theft; failing to prevent a larceny offense in his presence; and failing to safeguard and secure property in bldg 2C.
Charge II: violation of UCMJ, Article 121: stole a John Wayne portrait on 920912, on board Camp H.M. Smith, HI
Findings: to Charge I and Charge II - guilty
Sentence: Forfeiture of $200 per month 2 months, 45 days hard labor without confinement, 45 days restriction and reduction to E-1.
CA 930209: Finding to Charge II and its spec disapproved and dismissed. Sentence approved and order executed except forfeiture of $200 per month for 2 months is suspended for 6 months.
930625:  NIS report whereby applicant admits to buying anabolic steroids from another Marine.
930708:  NJP for violation of UCMJ, Article 112a: on or about Mar 93 to Apr 93 wrongfully posses anabolic steroids.
         Awarded forfeiture of $407.00 per month for 1 month (suspended for 6 months), restriction and extra duties for 30 years. Not appealed.
930714:  SSPCMO: Due to commission of a UCMJ violation during the probation period, the suspended forfeiture of $200 pay per month for 2 months issued pursuant to Special Court-Martial of 9 Feb 93, is hereby vacated and ordered executed.

930729:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your violation of Article 112a, UCMJ, for wrongful possession and use of anabolic steroids, a Schedule III Control Substance.
930803:  Applicant advised of his rights and having consulted 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.
930806:  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 NIS report relating to misconduct - drug abuse. Commanding officer’s comments (verbatim): "Private (Applicant) received nonjudicial punishment on 8 July 1993, for wrongful possession and use of anabolic steroids, a schedule III controlled substance. Private (Applicant)'s action is a deliberate disregard to the Marine Corps' policy on drug abuse. His behavior is unacceptable and has adversely affected the good order and discipline of this command. His involvement with an illegal and dangerous drug clearly indicates that he is unsuitable for future military service. I recommend that Pvt (Applicant) be expeditiously discharged from the Marine Corps."

930813:  SJA review determined the case sufficient in law and fact.

930817:  GCMCA [Commander, Marine Forces Pacific] 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 930827 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, by a vote of 4 to 1, the Board found that the discharge was proper and equitable (D and E).

In the applicant’s issue 1, the Board found this to be non-decisional. The applicant was correctly processed for discharge. The punishment others did or did not receive has no bearing on his discharge. The applicant, although discharged for illegal drug usage, also received 2 NJP’s and one Special Court Martial for violations of the UCMJ. Relief denied.

In issue 2, that applicant states that his use of steroids was a one time use and that he admitted to buying steroids. This may have been a one time use, but he understood the Marine Corps policy concerning illegal drug usage (statement of acknowledgment dtd 890629) and failed to abide by that policy. Relief denied.

In issue 3, the applicant believes that his youth and immaturity affected his decision- making. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issue 4 is non-decisional.

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. At this time the Board feels that sufficient time has not passed to warrant an up-grade based on post service conduct . Therefore no relief will be granted at this time. The applicant is encouraged to continue with his post-service achievements. The applicant is highly encourage d to apply for a personal appearance within the next 5 years. The application must be 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. 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.
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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