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USMC | DRB | 2001_Marine | MD01-00311
Original file (MD01-00311.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD01-00311

Applicant’s Request
The application for discharge review, received 010117, 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 010808. After a thorough review of the records, 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 (verbatim)

 1. I know the reason for my discharge is very understandable. The matter in which had participation in my youthful, immaturity, and disrespectful act, was never concidered. The marines as you know are based on integrity, honor, protection, and freedom (honor, courage, commentment) upon enlistment I was contracted a $2,000 bonus. My recruiter pocketed the money. During time at MCRO, CA, I desputed the matter, but no one followed up on it. Four different "marines" had knowledge of this. After that three days prior to graduation, I was remove from my meritorious promotion for no given or apparent reason I continued this dispute at SOI but had already lost faith, I tried to stay in and take my punishment but was not even allowed to do that by order of the Sergeant Major of SOI - SSGT C____ head of legal dept, even put in good word for me since he saw first hand my comment to our Nation and our Corps, please help me put to rest this frustration. Thank you, Semper FI.

 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)                960108 - 960520  COG

 Period of Service Under Review :
Date of Enlistment: 960521               Date of Discharge: 961213

 Length of Service (years, months, days):

         Active: 00 06 25
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 57

 Highest Rank: PVT

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (2)                       Conduct: 4.2 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Expert Badge

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 :

960108:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
960911:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, to wit : SNM tested positive for THC on urinalysis
 conducted on 960820.
Awarded forfeiture of $403.00 per month for 2 months, restriction and
extra duties for 45 days. Not appealed.

 960911:  Counseled regarding deficiencies, specifically, the illegal use of marijuana. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.
961003:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
961003:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

961003:  Commanding Officer, Headquarter and Support Battalion, School of Infantry recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was wrongful use of illicit drugs. On 29 August 1996, PVT H____ tested positive on a urinalysis for illegal use of THC which was later adjudicated at nonjudicial punishment. Additionally, PVT H_____ was granted a drug waiver to enlist.

961008:  Commanding Officer, School of Infantry, Marine Corps Base, Camp Pendleton recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

961024:  SJA review determined the case sufficient in law and fact.

961024:  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 961213 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, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).
In response to the applicant’s issue, 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. Furthermore, the applicant has failed to substantiate how the alleged misconduct of another service member could excuse his own misconduct. Relief 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). The applicant must be aware that 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, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.

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 112a, wrongful use of a controlled substance.
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 “ afls10.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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