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USMC | DRB | 2001_Marine | MD01-00692
Original file (MD01-00692.rtf) Auto-classification: Denied


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

ex-Cpl, USMC
Docket No. MD01-00692

Applicant’s Request
The application for discharge review, received 010423, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010928. 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. I, (applicant), have been discharged from the United States Marine Corps as of October 30, 1995. I faced a devistating other than honorable discharge which has greatly effect my morale, job opportunities, and pride. I experimented with Marijuana for the first while serving in Desert Storm. I faced not knowing if I would make it home, depression and I was scared for my life. I give my deepest regrets in letting down my platoon, my country, and the Marine Corps. Since then I have suffered from unsteady jobs and bad self worth. I blame none other than myself and pray that the Naval Council of Personnel Boards will upgrade my discharge to a General/ under honorable conditions so I may continue on with my eduction and a stable job. I love the Marine Corps, the knowledge and discipline I have learned because I carry it with me from day to day. My awards and achievements on my DD-214 shows outstanding service. I ask you to please consider my proposal. Once again I show my regrets in putting myself in this situation and I thank you for your time.

 Documentation
Only the service and medical records were reviewed, as the applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              890829 - 930218  HON
         Inactive: USMCR(J)                881029 - 890828  COG

 Period of Service Under Review :
Date of Enlistment: 930219               Date of Discharge: 951031

 Length of Service (years, months, days):

         Active: 02 08 13
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 40

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (9)              Conduct: 3.6 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR (w/1 Star), NUC (2), SWASW (w/2 Stars), MCM, CAR, KLM, MM (2), GCM, CG's CoC, NAM, MUC

 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 :

881024:  Initial enlistment contract, applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
930219:  Reenlisted at 3d Bn, 6 th Mar, 2nd MarDiv, FMF, Camp Lejeune, NC for a term of four years.
940316:  Counseled for deficiencies in performance and conduct [Military DUI conviction on 940214]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

941129:  NJP for violation of UCMJ, Article 134: That on or between 940407 - 940811, violated Article 134 by intending to defraud make fraudulent telephone calls from the Limited Area and charging the calls to unknown numbers at MSB, Kings Bay, GA.
 Awarded reduction to E-3 (suspended for 6 months), forfeiture of $552.00 per month for 1 month, restriction for 30 days. Not appealed.
941221:  NJP for violation of UCMJ, Article 92: That on or about 941220, violated Art.92 by failing to report to the DNCO for restriction sign in at MCSFCo, NSB, Kings Bay, GA.
         Awarded reduction to E-2 (suspended for 6 months), restriction for 30 days. Not Appealed.

941221:  Reduction to E-3 imposed and suspended at NJP on 941129 vacated.

941222:  Counseled for deficiencies in performance and conduct [violation of Article 134 UCMJ by making long distance telephone calls from the RFF and charging them to unknown third parties]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950410:  Reduction to E-2 imposed and suspended on 941221 is set aside this date.
950410:  Reduction to E-3 imposed and suspended on 941128 and vacated on 941221 is set aside this date.
950417:  NAVDRUGLAB Jacksonville, FL: Positive for marijuana as a result of urinalysis testing.
950613:  NJP for violation of UCMJ, Article 112a: wrongfully use a controlled substance, Marijuana, between the months of March 1995 and April 1995 at or near St Marys, GA.
 Awarded reduction to E-3, forfeiture of $567.00 per month for 2 months, restriction and extra duties for 45 days. Not appealed.
950713:  Applicant permanently decertified from Personnel Reliability Program (PRP) due to testing positive for THC on a urinalysis testing.

950920:  Counseled for deficiencies in performance and conduct [illegal drug involvement, specifically, usage and positive urinalysis test conducted at NavDrugLab, Jacksonville]. Advised that processing for administrative separation for misconduct is mandatory.

951031:  Applicant discharged Under Other Than Honorable Conditions due to misconduct - drug abuse.
ADMIN DISCHARGE PACKAGE NOT CONTAINED IN SERVICE RECORD.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 951031 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable. The applicant states his awards and achievements on his DD-214 shows outstanding service. The receipt of awards and decorations does not mitigate the use of illegal drugs. The applicant’s discharge characterization accurately reflects his service to his country. 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      


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