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USMC | DRB | 2001_Marine | MD01-00886
Original file (MD01-00886.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD01-00886

Applicant’s Request
The application for discharge review, received 010625, requested that the characterization of service on the discharge be changed to honorable. 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, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. Administrative Discharge Board members included LtCol and SgtMaj who by billet alone could not feasibly consider retention.

2. Division Officer and Division Chief both submitted strong letters of recommendation. Applicant feels that adherence to policy to replace with another Marine was matter of course, yet personal and professional opinion of applicant remained intact.

3. Similar incident (respondent exhibit A) did not result in an OTH discharge.

4. Testament of fellow Marines, both peers and supervisors, indicate traits, characteristics, and work ethic attributed to applicant that coincide with standards of Marine Corps and do not reflect negatively on one isolated incident.

5. Applicant's desire to attend college and become an English teacher would be greatly facilitated by the Board's reconsideration of discharge. Any leniency towards reinstating GI Bill would afford applicant the opportunity of transitioning from One of America's Finest, to a contributing member of society.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of first page of administrative discharge board proceedings
Copy of court order dated March 3, 1995
Copy of page 9-6 from Naval Justice School Publication
Letter of recommendation dated June 26, 2000
Letter of recommendation dated July 2, 2000
Copy of witness questionnaire dated February 29, 2000
Copy of witness questionnaire dated February 28, 2000
Copy of witness questionnaire dated March 15, 2000
Copy of witness questionnaire dated March 2, 2000
Copy of witness questionnaire dated February 28, 2000
Letter from applicant's father dated March 7, 2000
Letter from applicant's mother dated February 29, 2000
Letter of recommendation dated February 28, 2000
Letter of recommendation dated February 28, 2000
Letter of recommendation dated February 28, 2000
Letter of recommendation dated March 5, 2000
Letter of recommendation undated
Copy of meritorious mast dated March 10, 1998
Copy of meritorious mast dated July 24, 1997
Copy of letter of appreciation dated December 10, 1996
Copy of letter of appreciation dated January 2, 1997
Copy of letter of appreciation dated December 18, 1997
Copy of meritorious mast dated June 10, 1998
Copy of unofficial transcript

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                950623 - unknown         ???
 USMCR(J)                 960627 - 960708  COG
Period of Service Under Review :
Date of Enlistment: 960709               Date of Discharge: 000628

 Length of Service (years, months, days):

         Active: 03 11 20
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 59

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (10)                      Conduct: 4.3 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: Letter of Appreciation (2), MM (3), Certificate of Commendation, SSDR, AFEM, GCM, 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 :

960627:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
970114:  Counseled for deficiencies in performance and conduct. [Contributing to minors. Specifically, during November of 1997 on occasions you furnished alcohol to minors at Barracks 913 aboard MCAS, Yuma, additionally these minors illegally entered Barracks 913 in direct violation of Squadron and Station Orders]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
991123:  Counseled for deficiencies in performance and conduct. [Specifically, providing alcoholic beverages to an underage Marine while in a liberty status]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
991228:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 991220, tested positive for THC.

 000203:  NJP for violation of UCMJ, Article 112A:
 Specification: Wrongful use, possession of controlled substance, to wit: marijuana.
Awarded reduction to PFC. Not appealed.
000217:  Medical evaluation for drug abuse was unable to substantiate a diagnosis at this time.

000220:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
000228:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
000229:  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 wrongful use of a controlled substance, to wit: marijuana.

000503:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

000612:  SJA review determined the case sufficient in law and fact.

000614:  GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 000628 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 rejects the argument that a LtCol and SgtMaj, by virtue of their billet and rank, were not suitable to sit on the applicant’s Administrative Discharge Board. On 000612, the SJA review determined the applicant’s discharge was sufficient in law and fact. Relief denied.

Issues 2 and 4. The applicant states his character is demonstrated by his outstanding, and documented, evaluations and awards received while in the USMC. The Board agrees that the applicant had good evaluations throughout his tenure, but his performance prior to the drug abuse doesn’t mitigate his use of illegal drugs. The applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”. The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue. The discharge was proper and equitable. Relief denied.

Issue 3. The applicant states similar incidents did not result in an OTH discharge. All cases are considered individually. The Board considered the equity and propriety within the specific circumstances of the applicant’s case. The applicant used illegal drugs. The Board found that drug abuse warranted processing for separation. Separation for drug abuse under Other Than Honorable conditions was proper and equitable. Additionally, the applicant did not provide any documentation to prove he is no longer a drug abuser. Relief denied.

Issue 5. 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’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. 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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