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USMC | DRB | 2001_Marine | MD01-00577
Original file (MD01-00577.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD01-00577

Applicant’s Request
The application for discharge review, received 010326, 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-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I am currently married with 2 children, I wish to show them the correct way to be in their young lives. I have no criminal record, I have remained a model citizen.

2. While serving I did recieve a good conduct medal. As you can probably see I served exactly 4 years I fullfilled my contract.

3. I was a big part of Desert Storm, as I was in supply at school of Infantry. Recieved a MUC, Letters of Appreciation from Col. W_ 1991

4. I feel I served my country & Corps very proudly. I am older and more aware about what goes on in life. I have worked steady since my release I am sorry for just a simple mistake in my young life.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Criminal background check from Tulsa County Sheriff dated June 4, 2001
Copy of DD Form 214
Copy of estimated benefits
Copy of a three year driving summary from State of Oklahoma dated April 21, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                880524 - 880612  COG

 Period of Service Under Review :
Date of Enlistment: 880613               Date of Discharge: 920612

 Length of Service (years, months, days):

         Active: 04 00 00
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 57

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (9)                       Conduct: 4.1 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MUC with 1 star, GCM, Letter of Appreciation

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

 Chronological Listing of Significant Service Events :

880505:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
880629:  Drug usage confirmed by urinalysis testing on 15Jun88. NAVDRUGLAB, San Diego, CA message 292000Z Jun 88.

880725:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver granted.
891130:  NJP for violation of UCMJ, Article 112A:
 Specification: Wrongfully use a controlled substance, to wit: cocaine on 11Oct89.
Awarded forfeiture of $391.00 per month for 2 months, restriction for 60 days, reduction to PFC. Not appealed.
891201:  Counseled for deficiencies in performance and conduct. [Abuse of controlled substance, cocaine]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
911022:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty 0930, 11Oct91.
Violation of UCMJ, Article 107:
Specification: False official statement on 0930, 11Oct91, to wit: tell Sgt he had turned in his rifle.
Awarded forfeiture of $224.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture of $100.00 for 1 month suspended for 6 months. Not appealed.
920502:  Applicant arrested for public intoxication, alcohol/drugs possession for sale. Copy of crime found in service record. Trial pending.
920527:  Medical evaluation for drug or alcohol abuse found the applicant not to be physiologically or psychologically dependent.

920603:  Counseled for deficiencies in performance and conduct. [Commission of a serious offense, specifically your involvement in offenses of a discreditable nature, i.e., your arrest for possession of LSD]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920609:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
920609:  Applicant advised of his rights and having consulted 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.
920609:  Statement of facts concerning blood test results on applicant. Received verbal verification of applicant's blood testing positive for methamphetamine.
920609:  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 positive blood test result for methamphetamine following your arrest by the San Clemente Police Department on 2 May 1992.

920610:  SJA review determined the case sufficient in law and fact.

920611:  GCMCA [Base Commander, Marine Corps Base, Camp Pendleton] 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 920612 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 and 4. 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.

Issues 2, and 3. The receipt of awards does not mitigate the applicant’s history of drug abuse while on active duty and receipt of nonjudicial punishment for other offenses. The applicant’s record of service is marred by his use of illegal drugs that warranted processing for separation, normally under other than honorable conditions. The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. The fact the applicant served exactly four years is coincidental to his processing for administrative separation under other than honorable conditions. 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. 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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