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USMC | DRB | 2001_Marine | MD01-01167
Original file (MD01-01167.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD01-01167

Applicant’s Request
The application for discharge review, received 010905, 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 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 Par. 6210.3.

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:
Letter from applicant dated September 1, 2001
Copy of DD Form 214
 Copy of certificate dated November 5, 1992
 Copy of promotion to Private First Class (meritoriously) dated November 13, 1992
 Certificate dated February 17, 1993
 Copy of meritorious mast dated February 17, 1993
Copy of certificate dated March 1993
 Copy of certificate dated March 30, 1993
 Letter to applicant's parents dated July 1, 1993
 Copy of promotion to Lance Corporal dated July 1, 1993
 Copy of certificate dated February

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                910826 - 920816  COG

 Period of Service Under Review :
Date of Enlistment: 920817               Date of Discharge: 960827

 Length of Service (years, months, days):
         Active: 04 00 11
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 50
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.0 (12)             Conduct: 3.3 (12)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, AFEM, MUC, SSDR, JMUC, MM

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

 Chronological Listing of Significant Service Events :

910826:          Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
931105:  Applicant temporarily decertified from the PRP due to a suspected overdose of caffeine that induced a seizure. Applicant placed on a 6 month limited duty medical board for observation.
931207:  Applicant administratively removed from the PRP during this time of observation.

 940425:  Applicant was arrested for excessive speeding and attempting to evade the police. Applicant was then screened as unfit for the PRP.
940505:  NJP for violation of UCMJ, Article 92:
 Specification: Violate CoO P5000.6, chap 17, par 170002.2 by being a minor in possession by consumption of an alcoholic beverage.
 Awarded forfeiture of $300.00 per month for 2 months, restriction and extra duties for 30 days, reduction to PFC. Forfeiture of $300.00 pay per month for 1 month suspended for 6 months. Not appealed.
940505:  Counseled for deficiencies in performance and conduct. [Under age consumption of an alcoholic beverage.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940621:  Applicant arrested.

 940703:  Applicant released from civilian custody.
950214:  Counseled for deficiencies in performance and conduct. [Your blatant disrespect towards NCOs and your lack of integrity and failure to obey regulations.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950419:  NJP for violation of UCMJ, Article 90:
 Specification: Willfully disobey a lawful order on 20Mar95, to wit: wear jewelry through his nipples.
 Violation of UCMJ, Article 92:
Specification: Fail to obey a regulation on 20Mar95, to wit: wrongfully wearing jewelry through his nipples, which behavior is considered eccentric and in violation of the Marine Corps Uniform regulations.
 Awarded forfeiture of $223.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
950510:  Counseled for deficiencies in performance and conduct. [Pattern of misconduct and frequent involvement in minor incidents prejudicial to the good order and discipline of the United States Marine Corps. You are further counseled on your lack of integrity and blatant disregard for Marine Corps Regulations.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
951004:  Counseled for deficiencies in performance and conduct. [Marine Corps' policy concerning illegal drug involvement, specifically zero tolerance and mandatory processing for administrative separation. Such counseling follows the finding of a small bag of powdered morphine behind applicant's dresser in his BEQ room on 13Sep95. Although proof of possession could not e established, the severity of the consequences of having illegal drugs in one's room and the implications associated with such findings have been explained.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960229:  Counseled for deficiencies in performance and conduct. [Positive test for MDA/MDMA in your urine from NAVDRUG LAB message 282007Z dated Feb96.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960510:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 112A:
          Specification: Between 29Jan96and 5Feb96, wrongfully use methylenedioxymethamphetamine (ectasy).
          Findings: to Charge I and specification thereunder, guilty.
          Sentence: Forfeiture of $300.00, restriction for 3 months, confinement for 75 days, reduction to Pvt.
          CA 960624: Sentence approved and ordered executed but execution of that portion of the sentence adjudging confinement in excess of 60 days is suspended for a period of twelve months.
960726:  NJP for violation of UCMJ, Article 107:
 Specification: False official statement on 3Jul96.
 Violation of UCMJ, Article 121:
Specification: Steal a pair of shoes, a value of $23.00, on 1705, 3Jul96, the property of the Marine Corps Exchange.
 Awarded forfeiture of $437.00 per month for 2 months, restriction and extra duties for 45 days. Not appealed.
960827:  GCMCA [Commander, 1 st Marine Division (Rein)] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
Discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960827 under other than honorable conditions for misconduct due to a pattern of misconduct (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.
The Board found that the applicant’s record of misconduct and illegal drug use clearly warrants a characterization of service of under other than honorable conditions, despite the applicant’s record of deployments and awards. 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 18 Aug 95 until 30 Jan 97.

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 90, disobeying a lawful order of a commissioned officer; Article 92, failure to obey a lawful general order; Article 107, false statement; Article 112a, wrongful use of a controlled substance; Article 121, larceny.
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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