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USMC | DRB | 2001_Marine | MD01-00349
Original file (MD01-00349.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD01-00349

Applicant’s Request
The application for discharge review, received 010125, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing before a traveling panel closest to Horn Lake, MS. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010822. 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, authority: MARCORSEPMAN 6210.5.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. Dear Sir or Madam, I am requesting the Board to review by discharge status based on the fact that as a young man, not fully aware of the consequences of my actions I allowed my emotions to cloud my judgment as a Marine. I was involved in a relationship with my High School sweetheart, which at the time I believed was the person I was going to spend the rest of my life with. I was wrong and made some serious mistakes, which haunt me today. Due to the distance barrier between us, after 19 months in the Marine Corps, I decided to make the mistake of going UA. I returned 26 days later after talking to my family. I was demoted from Lance Corporeal to the rank of PFC, which I accepted for my actions. My judgment at the time was so clouded by my feelings for this young girl that all I could think of was getting back to her. It was at that time that I decided to smoke a joint of marijuana in order to fail the urine test. This resulted in my discharge from military service. I asked not to be forgiven for my actions, for only I can take responsibility for what I have done in the past. What I can ask is the members of the board to once again give me the opportunity to serve my country. My father is a Commander with the Desoto County Sheriff s Department, and my Uncle is Career Navy. I come from good stock. In the past three years that I have been out of the Marines the only infraction that I have on my record is two minor traffic violations. I can only hope and pray at this time the board will reconsider my discharge status and allow me to serve my country once again.
Thanking you in advance.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                951103 - 960902  COG
Period of Service Under Review :
Date of Enlistment: 960903               Date of Discharge: 980401

 Length of Service (years, months, days):
         Active: 01 06 30
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 36
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.9 (4)                       Conduct: 4.0 (4)
Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 26

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 :

951101:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
980114:  Applicant informed eligible but not recommended for promotion to Corporal for the month of February because of violation of Article 86.

980218:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0700, 5Jan98 to 1145, 31Jan98 (26 days/surrendered).
 Violation of UCMJ, Article 112A:
Specification: Wrongfully use THC, to wit: admitted to using THC while in unauthorized absence status.
 Awarded forfeiture of $500.00 per month for 2 months, restriction for 60 days, reduction to PFC. Not appealed.
980218:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, tested positive for THC.

 980225:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.
9903??:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
9903??:  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.
990321:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was your failure to conform to the standards of the Marine Corps. On 18 February 1998 you received NJP for violation of Art. 112a, wrongful use of THC in conjunction with the spirit of no tolerance to drug abuse.

980323:  Applicant informed eligible but not recommended for promotion to Corporal or the month of April because of violation Article 86.


980323:  SJA review determined the case sufficient in law and fact.
980324:  GCMCA [Commanding General, 1 st Marine Division (Rein)] 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 980401 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that immaturity was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. On 1 November, 1995 the applicant was briefed upon and certified that he understood the Marine Corps’ zero tolerance drug use policy. Drug abuse warranted separation, normally under other than honorable conditions. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an upgrade to his characterization of service. The applicant, after consulting with legal counsel, waived his right to contest the characterization of service at an administrative hearing while being processed for discharge in 1998. Under Other Than Honorable conditions most clearly describes the applicant’s characterization of 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. The separation proceedings were reviewed and found sufficient in law and fact on 980323. 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. 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, and certification of non-involvement with civil authorities in order for consideration for relief based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct.

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 . Representation at a personal hearing is not mandatory, but is strongly recommended. This representation need not be a lawyer, but may be any person of stature and good standing in the community including the various veterans’ organization.


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. 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 “ 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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