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USMC | DRB | 2000_Marine | MD00-00819
Original file (MD00-00819.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD00-00819

Applicant’s Request
The application for discharge review, received 000614, 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 010201. 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-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I feel my discharge was inequitable because it was based on a particularly low point in my life, my wife had just left me and taken out new born baby with her. I have since turned my life around, I now have sole custody of my daughter, I have remarried to a wonderful woman, we have three children now, we have started our own business, and are working on the American dream. Any and all consideration would be greatly appreciated.


 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)                851224 - 860805  COG

 Period of Service Under Review :
Date of Enlistment: 860806               Date of Discharge: 900824

 Length of Service (years, months, days):

         Active: 04 00 14
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 54

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (12)             Conduct: 3.8 (12)

 Military Decorations: None

 Unit/Campaign/Service Awards: Letter of Appreciation, MM, MUC, GCM

 Days of Unauthorized Absence: 5

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 :

860806:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
870423:  Applicant assigned to remedial physical training.

870501:  Applicant removed from remedial physical training.

870506:  Not recommended for promotion to LCpl because of PFT failure.

 871123:  Counseled for deficiencies in performance and conduct. [Writing a bad check for MCX on 21Sep87 for the amount of $27.72.] Necessary corrective actions explained.
880606:  Counseled for deficiencies in performance and conduct. [Possessing alcoholic beverages in BEQ in violation of Sta0 11100.4a.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
881017:  Applicant assigned to Remedial PT Program.

891003:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence 0731, 29Aug89 to 1100, 3Sep89. (5 days/surrendered).
Violation of UCMJ, Article 91:
Specification: Willfully disobeyed order of SSgt, to file documents in the Proof of Delivery File on 1600, 28Aug89.
Violation of UCMJ, Article 92 (2 specs):
Specification 1: Derelict in performance of duties by willfully placing two large trash bags of Proof of Delivery Copies that he was ordered to file, in his POV for the purpose of disposing of them on 0800, 26Aug89.
Specification 2: Derelict in the performance of duties by willfully hiding Government Proof of Delivery Copies, in the Group Supply's Warehouse in different locations on 1900, 28Aug89.
Violation of UCMJ, Article 134:
Specification: Willfully and unlawfully removed a public record, to wit: Proof of Delivery Receipts from the Group Supply's warehouse on 0800, 26Aug89.
Awarded forfeiture of $446.00 per month for 2 months, correctional custody for 30 days. Forfeiture suspended for 6 months. Not appealed.
891017:  NAVDRUGLAB San Diego, CA, reported applicant’s urine sample, received 891006, tested positive for THC.

 891108:  Vacate suspended forfeiture.

 891121:  Medical evaluation for drug abuse found the applicant to be psychological drug and alcohol dependent. Recommendation: Level III, with pretreatment.

891127:  Applicant placed on the urinalysis surveillance program for showing positive for marijuana, confirmation message 172008Z Oct 89.
891130:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Fail to go at the time prescribed, to wit: station theater on 0750, 22Nov89.
Specification 2: Fail to go at the time prescribed, to wit: Naval Hospital on 1300, 22Nov89.
Violation of UCMJ, Article 112A:
Specification: Wrongfully use marijuana on 4Oct89.
Awarded forfeiture of $391.00 per month for 2 months, restriction for 45 days, and extra duties for 30 days, reduction to PFC. Not appealed.
891218:  Applicant removed from the urinalysis surveillance program.

 900301:  Applicant completed Level III in-patient treatment from 900116-900301 at Naval Alcohol/Drug Rehabilitation Center.
900328:  Applicant placed on urinalysis surveillance program after being evaluated by the Joint Drug and Alcohol Counseling Center.
900524:  Counseled for deficiencies in performance and conduct. [Failure to comply with the Commandant of the Marine policy concerning illegal drug usage and showing positive for marijuana while being assigned to the urinalysis surveillance program.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900606:  NAVDRUGLAB Oakland, CA, reported applicant’s urine sample, received 900529, tested positive for THC.
900606:  Applicant considered treatment failure.

9006xx:  Applicant released from Level III as unsuccessful completion.

900717:  Applicant declined to participate in VA treatment.

 900717:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
900718:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board. [AOR shows applicant was notified of misconduct for drug abuse and drug rehabilitation, specifically misconduct due to drug abuse.]
900718:  Commanding officer recommended discharge under other than honorable conditions by reason convenience of the government due to drug rehabilitation failure and by reason of misconduct due to drug abuse. The factual basis for this recommendation was: “PFC (applicant's) flagrant pattern of misconduct is evidenced by two official counseling entries for violations of the UCMJ; two nonjudicial punishments, including one for the use of illegal drugs; and a positive urinalysis for THC use subsequent to his completion of Level III treatment program for drug dependency. I strongly recommend that PFC (applicant) be discharged from the U.S. Marine Corps and that the characterization of service be under other than honorable.

900720:  Applicant waived right to Administrative Discharge Board.

900731:  SJA review determined the case sufficient in law and fact.

900802:  GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 900824 under other than honorable conditions for misconduct due to drug abuse (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).

 The NDRB is authorized to consider post-service factors, issue 1, in the characterization of a discharge (D). 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. No such error or injustice is evident in the applicant’s service record.

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, can be considered. 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. In reviewing the applicant’s post service, the Board found that the applicant provided no documentation to substantiate his post-service claim. Therefore, relief will not be granted at this time. The applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at a personal appearance hearing is highly recommended. The possibility of favorable action in the applicant’s case will increase with the amount of time he maintains a drug free lifestyle. Verifiable documentation of such a lifestyle is essential.


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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