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USMC | DRB | 2001_Marine | MD01-00782
Original file (MD01-00782.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD01-00782

Applicant’s Request
The application for discharge review, received 010516, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant designated himself as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020731. 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, as submitted

1. This is in consideration of my discharge from the United States Marine Corp. I would appreciate if the board would consider me eligible for my personel files to be review, and released to me. There are a lot of issues that would make it probable for the board to upgrade my discharge to Honorable. The time I served there was never any displinary action took against me until 971126. When I drove my aunt car back from the weekend. The sentry search it looking for an ear ring. They found a seed of marijuana inside of it. Later I was tested for it in my system the test was negative. Then they knew it was not mine. I still lost rank and pay while waiting on separation. Thank you for considering this application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
2 Copies of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                940717 - 961020  COG

 Period of Service Under Review :
Date of Enlistment: 961021               Date of Discharge: 980126

 Length of Service (years, months, days):

         Active: 01 03 06
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 38

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (4)              Conduct: 4.3 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

960717:  Initial enlistment contract documented admission of pre-service drug use. Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
970701:  Counseled for deficiencies in performance and conduct [unauthorized absence and not following orders from a non-commissioned officer]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
971126:  NJP for violation of UCMJ, Article 112a: on or about 0305, 971125 possess an illegal substance; violation of UCMJ, Article 92: did on or about 0305, 971125 have an earring in his ear while trying to get through the front gate.
Awarded reduction to E-1, restriction and extra duties for 45 days. Not appealed.
971204:  NJP for violation of UCMJ, Article 92: on or about 1300, 971126 take his POV home when told not to; violation of UCMJ, Article 134: on or about 1300, 971126 break restriction.
Awarded forfeiture of $450.00 pay per month for two months, restriction and extra duties for 45 days (forfeiture of $450 for one month and 45 days of restriction and extra duties suspended for 6 months). Not appealed.
971223:  NJP for violation of UCMJ, Article 92: disobeyed a lawful order on 971217 by drinking on restriction; violation of UCMJ, Article 92: was drinking under age; violation of UCMJ, Article 86: on 971220 at 0700, unauthorized absence from restriction muster.
Awarded forfeiture of $450.00 pay per month for 2 months (suspended for 6 months). Not appealed.
980106:  NJP imposed and suspended on 971223 for period of 6 months vacated and punishment ordered executed.
Note: Administrative Discharge Package not contained in service record book and applicant did not provide.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980126 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine. T he applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions and an adverse counseling entry on another occasion. There was no injustice in the fact the applicant lost rank and pay as a result of his punishments. The Board found no indication that the applicant was unfairly charged and punished for any offense. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade would be inappropriate. Relief denied.

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. The applicant 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. Legal representation at a personal appearance hearing is highly recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until Present.

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 “ afls14.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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