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USMC | DRB | 2002_Marine | MD02-00032
Original file (MD02-00032.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD02-00032

Applicant’s Request
The application for discharge review, received 010926, 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 020529. 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. I (APPLICANT) FEEL AS THOUGH MY DISCHARGE FROM THE UNITED STATES MARINE CORPS ON 9/24/99 WAS DONE IN HASTE. I HAVE RECIEVED AN OTHER THAN HONORABLE DISCHARGE, WITH THE RE-4B AND A SUMMARY OF DRUGABUSE. I REALIZED I HAD CAUSED THIS DISCHARGE. I NO LONGER ACT AS I ONCE DID. I'M A RESPONSIBLE FATHER, HUSBAND, AND SON. I'M CURRENTLY IN THE AVIATION FIELD AND I AM PLAUGED BY THIS DISCHARGE. ALTHOUGH IT WAS A DIRECT REFLECTION OF MY ACTIONS PLEASE REVIEW MY SERVICE RECORD. I WOULD HAVE APPEALED IT THEN, BUT HAD BEEN PUT IN RESTRICTION WHILE MY WIFE AT HOME (PREGNANT) JUST WANTED HER HUSBAND TO COME HOME, ALSO AT THE TIME I WAS ADVISED BY MY COMMAND THAT NOTHING COULD BE DONE. WHICH WAS NOT TRUE PRIOR TO MY ENLISTMENT IN THE UNITED STATES MARINE CORPS I SERVED IN THE OKLAHOMA ARMY NATIONAL GUARD AND THE TEXAS ARMY NATIONAL GUARD FOR FIVE YEARS OF SERVICE WITHOUT INCIDENT. I RESPECTFULLY REQUEST THAT MY DISCHARGE BE UPGRADED SO THAT I MAY CONTINUE ON IN MY THE LIFE AND CAREER. THE UPGRADE OF THIS DISCHARGE WILL NOT ONLY BENIFIT ME BUT MY FAMILY. 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: 940226 – 970408: ARNG
Period of Service Under Review :
Date of Enlistment: 981209               Date of Discharge: 990924

 Length of Service (years, months, days):
         Active: 00 09 16
          Inactive: None
Age at Entry: 27                          Years Contracted: 5

 Education Level: 18                        AFQT: 53
Highest Rank: Pvt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 2.0 (1)                       Conduct: 2.0 (1)
Military Decorations: None

 Unit/Campaign/Service Awards: None
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 :

981120:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
981209:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver granted.
990507:  Applicant diagnosed alcohol dependent and cocaine abuser.

 990607:  Applicant admitted to Level III treatment.
990614:  NAVDRUGLAB, Great Lakes, IL reported applicant's urine sample, received 990608, tested positive for cocaine.
990625:  Applicant released from treatment and give continuing care plan. Discharge diagnosis: Axis I: Alcohol dependence, Cocaine "Crack" dependence.

990707:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from unit on 0446-2020, 3May99.
 Violation of UCMJ, Article 112A:
Specification: Wrongfully use cocaine on 6May99.
 Awarded forfeiture of $479.00 per month for 1 month, restriction for 60 days, reduction to Pvt. Forfeiture suspended for 3 months. Not appealed.
990812:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
990813:  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.
990817:  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 illegal in-service usage of a controlled substance as evidenced by you nonjudicial punishment held on 7 July 1999.

990921:  SJA review determined the case sufficient in law and fact.
990921:  GCMCA [Commander, Marine Corps Air Base, Eastern Area] 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 990924 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.
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. 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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