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USMC | DRB | 2001_Marine | MD01-01165
Original file (MD01-01165.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD01-01165

Applicant’s Request
The application for discharge review, received 010905, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing before a Traveling Panel closest to Los Angeles, California. The applicant did not designate a representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020417. 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

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's letter to the Board dtd Aug 30, 2001
Letter of Acceptance to the Glendale Community College dtd May 17, 2001
 Letter of Selection to Fire Cadet in Glendale Arroyo Seco Fire Academy dtd June
 28, 2001
 College Enrollment description (Fall 2001)
Letters from and to Mom from Applicant and photos (15 pages)
 Copy of DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                971124 - 980205  COG
Period of Service Under Review :
Date of Enlistment: 980106               Date of Discharge: 991124
Length of Service (years, months, days):
         Active: 01 10 19 (Doesn't exclude lost/confinement time.)
         Inactive: None
Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 53
Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.8 (5)              Conduct: 2.9 (6)

 Military Decorations: None
Unit/Campaign/Service Awards: LoA

 Days of Unauthorized Absence: 73
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 :

971120:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
980923:  NAVDRUGLAB San Diego, reported applicant’s urine sample, received 980915, tested positive for methamphetamine.
981002:  NJP for violation of UCMJ, Article 112a: tested positive for the use of controlled substance, specifically methamphetamine, on or about 980922.
 Awarded forfeiture of $463.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-1. Not appealed.
981021:  Substance Abuse Evaluation (SACC): Diagnosis - alcohol dependency.
Recommendation: Attend SACC Intensive Outpatient Treatment and process for discharge for illegal drug use.
990112:  Commenced Outpatient Treatment for alcohol dependence.

 990309:  Outpatient Treatment completed. Returned to command pending discharge for illegal drug use. Recommend remain in aftercare status until discharge, consisting of attending 2 AA meetings per week, weekly check-ins with unit SACO and abstinence from alcohol consumption.
990331:  Unauthorized absence since 1200.

 990503:  Declared deserter.
990612:  Apprehended and retained by civil authorized at 2315, 990612 and retained at Grant County Detention Facility.
990629:  Returned to military authorities (MWSS 371, MCAS, Yuma, AZ).
990823:  Special Court-Martial.
          Charge I: violation of the UCMJ, Article 86 (2 Specs):
         Specification 1: did, in or around Yuma, AZ, during about 31 March 1999, without authority, absent himself from his unit to wit: Hqtrs & Hqtrs Squadron, MCAS, Yuma, AZ and did remain so absent until about 30 Apr 99.
          Specification 2: did, in or around Yuma, AZ, during about 30 April 1999, without authority, absent himself from his unit to wit: Marine Wing Support Squadron Wing, MCAS, Yuma, AZ and did remain so absent until he was apprehended during about 12 June 1999.
         Findings: to Charge I and specification 1 thereunder, guilty. To specification 2- withdrawn (Specification 1 and 2 combined to make one specification.
         Pretrial Agreement: All confinement in excess of 70 days will be suspended for period of 12 months from date of convening authority's action, at which time, unless sooner vacated, the suspended portion will be remitted without further action.
         Sentence: Forfeiture of $500.00 pay per month for 3 months and 75 days confinement.
         CA 000000: Sentence approved and ordered executed except for the BCD.
         
990823:  To confinement, Sentence of SPCM.

 990825:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by illegal use of Methamphetamine as adjudicated by NJP on 2 Oct 98.
990907:  Applicant advised of his rights and having consulted 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.
990909:  From confinement.

 990924:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was Marine's illegal drug use and subsequent UA, and later a deserter.

991108:  SJA review determined the case sufficient in law and fact.

991118:  GCMCA [CG, 3d MAW] 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 991124 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. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the applicant’s letter. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. 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. 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 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 “ 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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