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USMC | DRB | 2001_Marine | MD01-00674
Original file (MD01-00674.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD01-00674

Applicant’s Request
The application for discharge review, received 010409, 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. In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area. Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020215. 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 (with admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. I have applied for V.A. Benefits and Treatment, but have been denied due to my type of discharge. I have a service related injury caused by a shaving condition incurred during my military service. Sir I wish to be allowed treatment for this condition please review my service medical records on my shaving condition. Over the years I have grown large keloid. Scares in my face due to this shaving condition. I have medical records from my service related condition also medical records from my civilian doctors. Please let me know if they are need by you.


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)                840728 - 850722  COG

 Period of Service Under Review :
Date of Enlistment: 850723               Date of Discharge: 870408

 Length of Service (years, months, days):

         Active: 01 08 10
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 34

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (5)                       Conduct: 3.8 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Sharpshooter Badge, GCM

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

xxxxxx:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver granted was not required. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs. [Extracted from SJA's Message].
860113:  NJP for violation of UCMJ, Article 112a: On 851122, wrongfully used marijuana (THC) a scheduled I controlled substance at StudCoB, ScolsBn, MCCES, MCAGCC 29 Palms, CA.
 Awarded forfeiture of $318.00 pay per month for 2 months, 30 days CC to the limits of CamPen, CA. Not appealed.
860306:  Counseled for deficiencies in performance and conduct [Failure to comply with the UCMJ]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

861211:  NAVDRUGLAB [SAN DIEGO, CA], reported applicant’s urine sample, received 861205, tested positive for [cocaine].

870107:  Staff Sergeant D. W. K____ recommended applicant to be discharged other than honorable.

870107:  Second Lieutenant M.H. P____ recommended applicant to be discharged from active service under other than honorable conditions due to repeated use of drugs.

870108:  Commanding Officer, Company L recommendation for applicant to be discharged from active service under other than honorable conditions due to his continued use of drugs.

870109:  NJP for violation of UCMJ, Article 112a: In that SNM did on or about 861101 and 861201 use some amount of cocaine, determined by urinalysis.
Awarded forfeiture of $300.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-1. Not appealed.
870212:  Medical evaluation for drug abuse found the applicant to be not drug dependent.
870305:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by two non-judicial punishments (one for the use of marijuana and one for the use of cocaine).
870305:  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.

870306:  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 use of illegal drugs as evidenced by two non-judicial punishments (one for the use of marijuana and one for the use of cocaine).

870318:  SJA review determined the case sufficient in law and fact.

870319:  GCMCA [Commanding General, 1 st MARDIV] directed the applicant's discharge under other than honorable conditions by reason of misconduct a pattern of misconduct and drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 870408 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 Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The discharge was proper and equitable. Relief denied.

 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 P1900.16C), Change 2, effective 15 Apr 84 until 28 Jul 87.

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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