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USMC | DRB | 2001_Marine | MD01-00913
Original file (MD01-00913.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD01-00913

Applicant’s Request
The application for discharge review, received 010703, 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. The issue that I'm most concerned w/ is the upgrading of my discharge.
2. The issue of why documents were sent to me stating that I was eligible for my GI Bill but now I'm told that I am not eligible unless I get an upgrade.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Applicant to DVA (2pgs)
Acceptance Letter from ECPI College of Technology
 Letter from Applicant's Fiancée (2pgs)
Letter in Support from Attorney at Law J. T____ L__

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
          Inactive: USMCR(J)                950829 - 960623  COG
Period of Service Under Review :
Date of Enlistment: 960624               Date of Discharge: 000211

 Length of Service (years, months, days):
         Active: 03 07 18
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 35
Highest Rank: LCPL

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.3 (10)                      Conduct: 4.1 (10)

 Military Decorations: None
Unit/Campaign/Service Awards: SSDR(4 TH ), AFSM, MUC, NM, HSM, Rifle Expert Badge

 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 :

950828:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
970820:  Counseled for deficiencies in performance and conduct. [Dereliction of duties while assigned to the Migrant Operations at Guantanamo Bay Cuba in that SNM was guilty in sleeping while on duty]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980721:  Counseled for deficiencies in performance and conduct. [Lack of judgement in violating Article 92 and 134. Marine was wearing a tongue ring on 980623]. Specific recommendation for corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990518:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 128: Assault in Pohang, Korea, in that SNM did assault an NCO by striking him.
          Finding: to Charge I and the specification thereunder, guilty.
          Sentence: Confinement for 90 days, forfeiture of $600.00 pay per month for 6 months, reduced to E-1.
          CA action 990601: Sentence approved and ordered executed.
990811:  NAVDRUGLAB [JACKSONVILLE, FL], reported applicant’s urine sample, received 990804, tested positive for [THC].
990819:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
990819:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
990901:  NJP for violation of UCMJ, Article 112a: On or about 990802, wrongfully used marijuana.
 Awarded forfeiture of $479.00 per month for 2 months, restriction and extra duties for 45 days. Not appealed.
991011:  Substance Abuse Evaluation Report indicate applicant was evaluated by a credentialed provider as a result of a command referral. The diagnosis was Drug Abuse (Isolated Incident).

 991012:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was the respondent's incident of illegal drug use as identified in NAVDRUGLAB Jacksonville, FL msg 111634Z Aug 99.

991027:  Commanding Officer, 8 th Marine REGT 2D MAR DIV concurring with the recommendation of Commander's that applicant be discharged from the United States Marine Corps under Other than Honorable conditions due to drug abuse.
000121:  GCMCA [Commander, 2d Marine Division, II Marine Expeditionary Force] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.
000124:  SJA review determined the case sufficient in law and fact.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000211 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 used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The discharge was proper and equitable. Relief denied.
Issue 2. 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. 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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