Search Decisions

Decision Text

USMC | DRB | 2001_Marine | MD01-00475
Original file (MD01-00475.rtf) Auto-classification: Denied


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


ex-LCpl, USMC
Docket No. MD01-00475

Applicant’s Request
The application for discharge review, received 010305, 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 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. My name is (applicant). I served in the Marine Corps for three and a half years.
 My reason for this letter is a review of my discharge. I felt that my discharge was not exactly fair. I tested positive for marijuana after the Christmas 96 in 1998. I stayed in the Marine Corps l year and 2 months after the incident. In addition, I never tested positive for it again. I was fit for full duty, never fell out of P.T, I was still allowed to work on gear. I was sent to formal schools. I never had a page 11 or any NJP'S. My Battalion Commander even dropped the charges and had an investigation on our urinalysis program. I was never given the opportunity for retention in the Corps. I wanted to stay in the Corps; I only had 6 months left. Was I that intolerable that I couldn't stay in. I wasn't a bad Marine. I was awarded a good conduct medal, recommendation for reenlistment from my Company Commander. This issue is very important to me. I need to upgrade my discharge so I can provide for my family better. My success depends on my discharge. I wavered my board for discharge because I tried so long to prove that I was a good Marine. But my fighting spirit was crushed. I was constantly teased and harassed, they put all the drug pops in one room where all the harassing was centralized. Every time a new Marine came to the unit, they were encouraged to stay away from me. I was accused of stealing from my sergeant who at the time was a corporal. My Service Record Book speaks for itself. Your consideration in this matter is highly appreciated.
 Sincerely,

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
 Letter to Commanding Officer from applicant's parents dated August 17, 1999
 Copy of court-martial action sheet dated March 29, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                960408 - 960818  COG

 Period of Service Under Review :
Date of Enlistment: 960819               Date of Discharge: 000204

 Length of Service (years, months, days):
         Active: 03 05 16
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 52
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.4 (6)                       Conduct: 4.4 (6)

 Military Decorations: None
Unit/Campaign/Service Awards: SSDR, 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 :

960326:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
990124:  Counseled for deficiencies in performance and conduct. [Illegal drug involvement, marijuana usage identified through urinalysis confirmed by NAVDRUGLAB batch number J9901512]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990108:  NAVDRUGLAB Jacksonville, FL reported applicant’s urine sample, received 990105, tested positive for THC.
990209:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.

990329:  Court-Martial Action Sheet: The charge in the referenced case is hereby withdrawn and dismissed without prejudice due to recent discovery of possible misconduct by a member of the command's urinalysis program. The allegations of misconduct go directly to the credibility of the command's urinalysis program, and thus need to be fully investigated prior to continuing with prosecution in the referenced case. Additionally, and equally important, the same service member who is now under investigation has indicated he will invoke his 5 th Amendment rights if called to testify at the referenced trial. He is essential witness, and would therefore qualify as unavailable under R.C.M. 906. The prosecution can not currently proceed without first taking steps to make said witness available. [Extracted from supporting documents submitted by applicant].
         
990422:  Counseled for deficiencies in performance and conduct. [Lack of maturity and poor judgment. On the evening of 990417 you were involved in an alcohol-related incident at TT1 that resulted in you being charged for being drunk and disorderly]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990819:  Counseled for deficiencies in performance and conduct. [Illegal drug involvement, marijuana usage identified through urinalysis confirmed by NAVDRUGLAB]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990910:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
990910:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
990910:  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 incident of illegal drug use as identified in NAVDRUGLAB Jacksonville FL message 081735Z Jan99.

991105:  Applicant waived his right to an Administrative Discharge Board.

000124:  SJA review determined the case sufficient in law and fact.
000124:  GCMCA [Commander, 2d Marine Division, II Marine Expeditionary Force] 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 000204 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, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).
The applicant states his discharge was not fair due to his overall service record and dismissal of court martial proceedings due to a positive urinalysis for THC. The dismissal of charges triable by court-martial does not preclude the initiation of administrative separation proceedings at a later date. The applicant used illegal drugs. Drug abuse warranted processing for separation. The applicant’s service record notes two derogatory counseling entries for substance abuse, and numerous entries not recommending him for promotion. His section chief, platoon and company commander rated the applicant a below average Marine in August, 1999. On 991105 the applicant waived his right to an Administrative Discharge Board, during which he could have contested the equity of the pending separation.

The discharge was proper and equitable. 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 relief 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 P1900.16E), 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      


Similar Decisions

  • NAVY | DRB | 2004 Marine | MD04-00517

    Original file (MD04-00517.rtf) Auto-classification: Denied

    MD04-00517 Applicant’s Request The application for discharge review was received on 20040209. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.

  • USMC | DRB | 2002_Marine | MD02-01238

    Original file (MD02-01238.rtf) Auto-classification: Denied

    MD02-01238 Applicant’s Request The application for discharge review, received 20020828, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. I was 18 at the time of the accident, but not being able to do some of the things I used can do, had me looking at life in a different way. Relief not warranted.The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is...

  • USMC | DRB | 2001_Marine | MD01-01123

    Original file (MD01-01123.rtf) Auto-classification: Denied

    I had the back of my heel cut off and was lifted by helicopter from the accident to 29 palms naval hospital. Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Medical Related Documents (48pgs) Letter from applicantPicture of applicant’s foot DD-214 PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: USMC None Inactive: USMCR(J) 970320 - 970805 COG Period of...

  • USMC | DRB | 2000_Marine | MD00-00142

    Original file (MD00-00142.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Employment Reference Letter Character Reference Letters (2) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: USMC None Inactive: USMCR(J) 880218 - 880221 COG Period of Service Under Review :Date of Enlistment: 880222 Date of Discharge: 881202 Length of Service (years, months, days):Active: 00 09 11 Inactive:...

  • USMC | DRB | 2000_Marine | MD00-00144

    Original file (MD00-00144.rtf) Auto-classification: Denied

    Chronological Listing of Significant Service Events :880723: Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.930408: NAVDRUGLAB [Oakland, CA], reported applicant’s urine sample, received 930405, tested positive for THC.930415: NJP for violation of UCMJ, Article 112A:Specification: Wrongfully use THC (marijuana) on 25Mar93. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the...

  • NAVY | DRB | 2004 Marine | MD04-00713

    Original file (MD04-00713.rtf) Auto-classification: Denied

    000119: An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge general (under honorable conditions). PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 20000204 with a general (under honorable conditions) for misconduct due to drug abuse (A). Mandatory...

  • USMC | DRB | 2002_Marine | MD02-00927

    Original file (MD02-00927.rtf) Auto-classification: Denied

    We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrading her discharge to Honorable based on equity & good post service. 990416: An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions. ...

  • NAVY | DRB | 2003_Navy | ND03-00505

    Original file (ND03-00505.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. “An inadequate discharge is of my concern, but I feel that I have and continued to better myself as a person. 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...

  • USMC | DRB | 2002_Marine | MD02-00645

    Original file (MD02-00645.rtf) Auto-classification: Denied

    MD02-00645 Applicant’s Request The application for discharge review, received 020404, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 has no authority to upgrade a discharge for the sole purpose of enhancing...

  • USMC | DRB | 2000_Marine | MD00-00032

    Original file (MD00-00032.rtf) Auto-classification: Denied

    PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was discharged on 931122 under other than honorable conditions for misconduct due to drug abuse (A). 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).In the applicant’s issue, the Board found this to be non-decisional. Outstanding post-service conduct, to the extent that such...