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USMC | DRB | 2001_Marine | MD01-00885
Original file (MD01-00885.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD01-00885

Applicant’s Request
The application for discharge review, received 010625, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020118. 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. Members of the Board,
I have no real issues to speak of but this one. Admittedly while I was in the service I lacked the discipline to truly making anything with my life, and the past 8 years have truly opened my eyes. But the last year has hit me the hardest with my mom (age 49) in the hospital nearly dying and the birth of my son 9 months ago, I feel as if I have wasted a large part of my life. And as I prepare to become 31 years old with a son that needs me to provide for him I find that I must better myself for him, and until now, I was just glad not to have gotten in trouble with the justice system, how foolish I have been.
So to keep this short I would like to close this by saying that even though I feel overwhelmed at times I feel that getting my discharge upgraded so that I may use my V.A. Benefits to further my education and hopefully give my son chances that I didn't have will help me further my dreams and goals, so I can be more than just another man that has managed not to get in trouble with the law. Thank you for your time!

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                871113 - 880705  COG

 Period of Service Under Review :
Date of Enlistment: 880706                        Date of Discharge: 930820

 Length of Service (years, months, days):

         Active: 05 01 15
         Inactive: None

 Age at Entry: 17 Parental Consent                Years Contracted: 6

 Education Level: 12                                 AFQT: 80

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (16)                      Conduct: 3.6 (17)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR with 1 Star, Certificate of Appreciation, NDSM, SASM with 3 Stars, KLM

 Days of Unauthorized Absence: 72

 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 :

871111:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
890206:  NJP for violation of UCMJ, Article 92 (2 specs):
 Specification: Disobey a lawful written order to wit: SECNAVINST 1700.11C, par 4(d), by wrongfully consuming alcoholic beverages while under the legal drinking age of 21 as established by Tennessee State Law.
Specification 2: Disobey a lawful written order to wit: SqdnO 11101.1E, encl (1) par 3(a), by wrongfully possessing alcoholic beverages in the Barracks, Bldg S-412.
Awarded forfeiture of $391.00 per month for 1 month, restriction for 20 days, reduction to PFC. Not appealed.
890606:  NJP for violation of UCMJ, Article 113:
 Specification: Sleeping on post on 0125, 31May89.
Awarded forfeiture of $100.00 per month for 1 month, correctional custody for 30 days. Not appealed.
891116:  Counseled for deficiencies in performance and conduct. [Your failure to obey barracks regulation regarding visitation hours at the WM barracks. Your total disregard of General Orders while posted as the security watch (found asleep 3 times while on duty). Your duties while posted as the security watch is to preserve order, protect property, and to enforce Commanding Officer's regulations. Your negligence caused you to violate 11 General Orders. Failure to keep and maintain an accurate checkbook ledger, causing you to write worthless/dishonored checks]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900110:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence 0400, 18Nov89 to 0730, 20Nov89 (2 days).
Violation of UCMJ, Article 113:
Specification: Sleeping on post on 0350, 3Jan90.
Awarded forfeiture of $405.00 per month for 2 months, restriction for 45 days, reduction to PFC. Not appealed.
900621:  Counseled for deficiencies in performance and conduct. [Substandard conduct (ie: three nonjudicial punishments)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920305:  Counseled for deficiencies in performance and conduct. [Writing checks with insufficient funds]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920407:  Counseled for deficiencies in performance and conduct. [Failure to follow orders, specifically, failure to be at appointed place of duty, remedial PT and your frequent involvement of a discreditable nature with military/civilian authorities]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920430:  NJP for violation of UCMJ, Article 86:
 Specification: Failed to go to appointed place of duty on 1100, 6Apr92, to wit: remedial PT.
Violation of UCMJ, Article 91 (2 specs):
Specification 1: Willfully disobeyed lawful order on 6Mar92, to wit: bring all his military clothing back to Echo Btry immediately.
Specification 2: Willfully disobeyed lawful order on 2Mar92, to wit: to bring all his military clothing back to Echo Btry.
Awarded forfeiture of $440.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC. Not appealed.
921007:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 0730, 30Apr92 to 1710, 9Jul92 (70 days/surrendered).
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: Fine of $520.00, restriction for 2 months, confinement for 45 days, reduction to Pvt.
         CA 921204: Sentence approved and ordered executed.

921007:  Applicant to confinement.

921112:  Applicant from confinement.

930224:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 930217, tested positive for amphetamine and methamphetamine.

 930302:  NJP for violation of UCMJ, Article 112A:
 Specification: Test positive on a unit sweep urinalysis for amphetamines/methamphetamine on 8Feb93.
Awarded forfeiture of $407.00 per month for 2 months, restriction and extra duties for 45 days. Not appealed.
930310:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due minor disciplinary infractions, pattern of misconduct and drug abuse.
930311:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

930510:  Medical evaluation for drug abuse found the applicant to be drug dependent and an alcohol abuser.

930528:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, pattern of misconduct and minor disciplinary infractions. The factual basis for this recommendation was one positive urinalysis test taken on 920208 for amphetamine and methamphetamine, five nonjudicial punishments and one summary courts-martial. Due to the applicant's history, he obviously has no regard for the rules and regulations that govern the United States Marine Corps.

930629:  NJP for violation of UCMJ, Article 112A:
 Specification: Wrongfully use and possess amphetamine and methamphetamine.
Awarded forfeiture of $407.00 per month for 2 months, restriction and extra duties for 30 days. Not appealed.
930809:  SJA review determined the case sufficient in law and fact.

930810:  GCMCA [Commanding General, 1 st Marine Division (Rein) FMF] 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 930820 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 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.
A discharge Under Other than Honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he applicant’s service was marred by the award of nonjudicial punishment (NJP) for offenses triable by court-martial on six occasions, a Special Court Martial, and adverse counseling entries on other occasions. 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 naval service, and falls short of that required for an honorable characterization of service. An upgrade would be inappropriate. Relief denied.

 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. 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 86, unauthorized absence for more than 30 days; Article 92, failure to obey a lawful general order; Article 112a, wrongful use of a controlled substance; Article 113, sleeping on post.
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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