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USMC | DRB | 2001_Marine | MD01-00696
Original file (MD01-00696.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD01-00696

Applicant’s Request
The application for discharge review, received 010417, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011018. 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. (Equity Issue) This former member requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
 Letter from Assistant Majority Leader State Representative K___ G___
 Reference Letter from Marion County States Attorney J___ W. C____

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
          Inactive: USMCR(J)                891212 - 900618  COG
Period of Service Under Review :
Date of Enlistment: 900619               Date of Discharge: 930427

 Length of Service (years, months, days):
         Active: 02 10 08
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 52

 Highest Rank: LCpl
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (9)                       Conduct: 3.9 (9)
Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Sharpshooter Badge, NDSM, Meritorious Mast, COA, SSDR

 Days of Unauthorized Absence: 2
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 :

891212:  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.
921117:  Counseled for deficiencies in performance and conduct. [Failure to go to my appointed place of duty and frequent involvement with civil and military authorities]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921214:  NAVDRUGLAB SAN DIEGO, CA reported applicant’s urine sample, received 921204, tested positive for [THC].
921222:  NAVDRUGLAB SAN DIEGO, CA reported applicant’s urine sample, received 921218, tested positive for [Amphetamine/Methamphetamine/THC].
921230:  NAVDRUGLAB SAN DIEGO, CA reported applicant’s urine sample, received 921218, tested positive for [Amphetamine/Methamphetamine/THC].

 930106:  Commanding Officer, Ammunition Company, 1 st Supply Battalion, 1 st Force Service Support Group, FMFPac, Camp Pendleton, California request to Commanding Officer, 1 st Supply Battalion (Legal Officer), to separated SMN from the United States Marine Corps by reason of misconduct, drug abuse.

930107:  NJP for violation of UCMJ, Article 86: (4 Specs), Spec 1: Failed to go at the time prescribed to company formation at 0730, 921105; Spec 2: Failed to go at the time prescribed to company formation at 0730, 921106; Spec 3: Failed to go at the time prescribed to company formation at 0730, 921110; Spec 4: Failed to go at the time prescribed to company formation at 0730, 921112; Spec 5: Failed to go at the time prescribed to company formation at 0730, 921109; Spec 6: UA from 0700, 921209-0715, 921211, from CamPen, CA; violation of UCMJ, Article 112a: Wrongfully used of THC, a controlled substance, on board MCB, CamPen, or in the vicinity thereof on or about 921116; violation of UCMJ, Article 112a: Wrongfully used Amphetamine/Methamphetamine/THC, a controlled substance on board MCB, CamPen, or in the vicinity thereof on or about 921203.
 Awarded forfeiture of $456.00 per month for 2 months (suspended for 6 months), restriction and extra duties for 45 days, reduction to E-2. Not appealed.
930107:  Medical evaluation diagnosed applicant as alcohol and drug dependent and has elected to receive treatment in conjunction with discharge.

 930112:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

930121:  NJP imposed and suspended on 930105 for a period of 6 months is hereby vacated and the forfeiture of $456.00 pay per month for 2 months is ordered executed.

930208:  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 NJP which evidenced the illegal use of drugs.

930224:  Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
930301:  SJA review determined the case sufficient in law and fact.

 930303:  GCMCA [Commanding General, 1 st Force Service Support Group] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

930331:  NJP for violation of UCMJ, Article 112a: (2 Specs), Spec 1: Wrongful use of Amphetamine/Methamphetamine, a controlled substance, on board MCB, CamPen, or in the vicinity thereof on or about 930102; violation of UCMJ, Article 112a: Spec 2: Wrongful use of Methamphetamine, a controlled substance, on board MCB, CamPen, or in the vicinity thereof on or about 930114.
         Award: Forfeiture of $400.00 per month for 2 months, restriction for 60 days, reduction to E-1. Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930427 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. 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 P1900.16D), 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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