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USMC | DRB | 2001_Marine | MD01-00444
Original file (MD01-00444.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD01-00444

Applicant’s Request
The application for discharge review, received 010222, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a personal appearance hearing discharge review before a traveling panel. The applicant listed a member of Congress as his 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, and authorization from member of Congress required. The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing. Authorization from applicant’s stated representative was not received and case reviewed without representative.
 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, the 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. Discharge under the drug abuse/unfitness narrative. Submitting under court case G___ v. Secretary of the Army (Civil Action 77-9404). Will provide additional information at time of hearing.

2. Reason why you want your discharge changed
To receive the Montgomery G.I. Bill.
Enable me to start the path of career with less complications.
Ensure financial help.
The upgrade reflexes a better image than an less than honorable report.
Will clear negative inquiries in job application.
Further education goals.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                930312 - 930823  COG

 Period of Service Under Review :
Date of Enlistment: 930824               Date of Discharge: 960318

 Length of Service (years, months, days):

         Active: 02 06 25
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 45

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (6)                       Conduct: 4.5 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, COC, Rifle Marksman Badge, GCM

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 :

930824:  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.
950314:  Counseled for deficiencies in performance and conduct. [My alcohol related incident, specifically, my involvement in an affray as a result of being intoxicated]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
951213:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse as evidenced by Naval Drug Lab Jacksonville, Florida message 161016Z Nov 1995.
951215:  Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.
960111:  Commanding Officer, Fourth Recruit Training Battalion, Recruit Training Regiment, Marine Corps Recruit Depot, Parris Island recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse. The factual basis for this recommendation was abuse of a controlled substance, specifically, THC as evidenced by Naval Drug Lab Jacksonville, Florida message 161016Z Nov 1995.

960116:  Commanding Officer, Recruit Training Regiment, Marine Corps Recruiting Region, Parris Island concurring with the recommendation of GCMCA [Commander, Marine Corps Recruit Depot/Eastern Recruiting Region, Parris Island to separated respondent with an under Other Than Honorable conditions by reason of misconduct due to Drug abuse.

960214:  NJP for violation of UCMJ, Article 86: Did on or about 1630, until 1930, 960206, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Battalion duty.
 Awarded forfeiture of $250.00 per month for 1 month, restriction for 14 days. Not appealed.
960227:  Counseled for deficiencies in performance and conduct. [Your recent NJP on 960214 for violation of Art. 86.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960227:  Counseled for deficiencies in performance and conduct. [Illegal drug involvement; specifically, THC usage identified through urinalysis testing NAVDRUGLAB Jacksonville FL 161016 Nov 95.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960312:  Unconditional waiver for an administrative discharge board.
960315:  SJA review determined the case sufficient in law and fact [Extracted from CO's message dtd 960315].

960315:  GCMCA [Commander, Marine Corps Recruit Depot/Eastern Recruiting Region, Parris Island] 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 960318 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 is submitting under court case G__ v. Secretary of the Army (Civil Action 77-9404), and will provide additional information at the time of his hearing. No information concerning the court case listed by the applicant, was provided. Relief based on the applicant’s issue 1, is denied.

Issue 2. The applicant lists the following reasons why his discharge should be upgraded (verbatim): To receive the Montgomery G.I. Bill; to enable him to start the path of career with less complications; to ensure financial help; the upgrade flexs a better image than a less than Honorable report; will clear negative inquiries in job application; and to further educational goals. The reasons listed by the applicant, for an upgrade to his discharge, are not suitable reasons for which the NDRB is obligated to grant relief. 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 any of these documents. 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.

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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