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USMC | DRB | 2001_Marine | MD01-00425
Original file (MD01-00425.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD01-00425

Applicant’s Request
The application for discharge review, received 010220, 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 011108. 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/INVOL DIS (BOARD WAIVED (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. To whom it may concern

Several years ago, I made some really bad decisions. I was having problems in my life that I was not ready or willing to handle. I tried to medicate these problems with Alcohol and drugs.

I found myself in and out of jail on several different charges related to my substance abuse. I realized the truth was that I needed to work on myself. I attended a twelve-step program (AA) and I attend counseling on a regular basis. This time away allowed me to regain my self-esteem and establish realistic goals for my life.

I am very remorseful for my action. I must live with these mistakes for the rest of my life. However I cannot dwell on the past, I must go on with my life. I was a productive worker for most of my adult life. I can be productive again if given the chance.

It is my hope that you will give my application consideration for a possible upgrade of my discharge. Thank you for any and all consideration. It is greatly appreciated. Sincerely

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of certificate of completion of inpatient substance abuse treatment program dated January 25, 2001
Copy of Texas Rehabilitation Commission, Vocational Rehabilitation Division dated from January 25, 2001 to February 13, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                930320 - 930405  COG

 Period of Service Under Review :
Date of Enlistment: 930406               Date of Discharge: 941026

 Length of Service (years, months, days):

         Active: 01 06 21
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 13                        AFQT: 53

 Highest Rank: Pvt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (7)                       Conduct: 3.0 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN Par. 6210.5.

 Chronological Listing of Significant Service Events :

930318:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
940314:  NJP for violation of UCMJ, Article 86:
 Specification: Failed to report to duty at the prescribed time at 0100, 22Feb94.
Awarded restriction for 30 days, extra duties for 45 days. Not appealed.
940519:  NJP for violation of UCMJ, Article 107:
 Specification: Falsify an official document on 0730, 1May94.
Violation of UCMJ, Article 115:
Specification: Feign a soft tissue injury to left great toe on 0730, 1May94 for the purpose of avoiding duty at the air show.
Awarded forfeiture of $200.00 per month for 2 months. Forfeiture of $200.00 pay per month for 2 months suspended for 3 months. Not appealed.
940726:  Applicant placed on limited duty for 6 months. Limitations: No PT, running, marching, prolonged standing, walking.
940729:  Vacate suspended forfeiture of $200.00 per month for 2 months.

 940729:  NJP for violation of UCMJ, Article 91 (0 specs):
 Specification: Willfully disobeyed order of Sgt to check in from leave on 08000, 27Jul94.
Violation of UCMJ, Article 123A:
Specification: Wrote checks for payment of money on Marine Air Credit Union in the amount of $960.00, then knowing that he did not have sufficient funds in or credit with the bank to cover the checks on 0800, 27Jul94.
Awarded restriction for 45 days, reduction to Pvt. Not appealed.
940804:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 940729, tested positive for THC.

940809:  Counseled for deficiencies in performance and conduct. [Inability to adjust to a military lifestyle.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940810:  Counseled for deficiencies in performance and conduct. [Illegal drug involvement. Specifically, usage of THC confirmed by NAVDRUGLAB San Diego message R042050Z Aug 94 report of urine sample tests.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940810:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse.
940810:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse. The factual basis for this recommendation was positive urine sample test for THC confirmed by NAVDRUGLAB San Diego message R042050Z Aug 94.
940812:  Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.
940819:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 112A:
         Specification: Wrongful use of marijuana, a controlled substance.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Confinement for 30 days.
         CA action 940819: Sentence approved and ordered executed.

940819:  Applicant to confinement.

940912:  Applicant from confinement.

940919:  Applicant waived request for administrative discharge board.

940930:  SJA review determined the case sufficient in law and fact.

941005:  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 941026 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).

Issue 1. The applicant states, he made some really bad decisions several years ago, and tried to medicate these problems with alcohol and drugs. He is very remorseful for his actions. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. 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. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.

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 “ 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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