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USMC | DRB | 2001_Marine | MD01-00547
Original file (MD01-00547.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD01-00547

Applicant’s Request
The application for discharge review, received 010320, 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 010906. 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 discharge was inequitable because it was a decision made on this former marine for a mistake made in my life. I was dealing with some personal issues (divorce) that got in the way of my life & job & duty. I know what I did was wrong, I learned that in boot camp. I was punished for my actions by serving in the brig, loss of rank & pay for what I had done. I stood up & suffered the consequences of my actions, but with the discharge I received I am suffering everyday for those action. Since my discharge from the United States Marine Corps MOS 627 MWSS 271 Engineers I have realized a lot of things. I do not do the things or go near the things that got me in trouble in the service as my record will show. I look back at my past & have a lot of regrets, I was an outstanding marine while serving and will always be a U.S. Marine. I paid for what I did & I hope you see that. I'm asking that you agree & do not let this ruin my life. Lastly, I am trying to maintain a job as a Plymouth County Prison Guard. I have seen one side & did not like it. I belong on the other. I was discharged for failing a urinalysis for marijuana. Thank you.

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)                950419 - 950622  COG

 Period of Service Under Review :
Date of Enlistment: 950623               Date of Discharge: 980202

 Length of Service (years, months, days):

         Active: 02 07 10
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 57

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (7)                       Conduct: 4.1 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Rifle Marksman 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 :

950627:  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.
970428:  NAVDRUGLAB [JACKSONVILLE,FL], reported applicant’s urine sample, received 970410, tested positive for THC.

970630:  Director of SACC indicates SNM was evaluated J____ A____ and was determined not to meet DSM IV criteria for Drug/Alcohol abuse or dependence. Review of record does reveal evidence of irresponsible use, but symptoms does not appear to meet DSM IV criteria for duration. The center recommended SNM be assigned to command's Level I program and be closely monitored, and attend Drug Education at SACC.

970827:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 92: At 406 West Atlantic Blvd, Atlantic Beach NC on or about 970430, violate a lawful general regulation, to wit: par 6b, SECNAVINST 5300.2B, dtd 9900711, by wrongfully having in his possession drug paraphernalia, to wit: a bong type pipe and a package of rolling paper; Charge II: violation of the UCMJ, Article 112a: At an unknown location, on or about or between 970325 and 970401, wrongfully used marijuana.
         Finding: to Charge I and the specification thereunder, guilty, except the words "bong type pipe"; to Charge II and the specification thereunder, guilty.
         Sentence: Confinement for 30 days, forfeiture of $600.00 pay per month for 1 month, reduced to E-1.
         CA action 970827: Sentence approved and ordered executed.

971212:  Counseled concerning illegal drug involvement; specifically, usage of THC as identified by NAVDRUGLAB JAXFL Msg 281700z Apr 97.

980108:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
980108:  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.

980108:  Commanding Officer, Marine Wing Support Squadron 271 recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was your in service drug use as evidenced by Navy Drug Lab, Jacksonville, Florida message 281700Z of April 1997 and your Summary Court-Martial conviction on 27 August 1997.

980109:  Commanding Officer, Marine Wing Support Group 27 concurring with the recommendation of Commanding Officer, Marine Wing Support Squadron 271 to discharge respondent under other than honorable conditions by reason of misconduct due to drug abuse.

980122:  SJA review determined the case sufficient in law and fact [Extracted from CG's message].

980122:  GCMCA [Commanding General, 2d 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 980202 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).

Issue 1. The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. The applicant used illegal drugs. Drug abuse warranted processing for separation under other than honorable conditions. The applicant acknowledged the same in a signed letter on 980108, in which he waived his right to an Administrative Discharge Board. 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      


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