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USMC | DRB | 2002_Marine | MD02-00140
Original file (MD02-00140.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD02-00140

Applicant’s Request
The application for discharge review, received 011019, 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 020701. 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-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as submitted

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:
2 Employment Reference Letters

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                890110 - 890303  COG

 Period of Service Under Review :
Date of Enlistment: 890304               Date of Discharge: 921124

 Length of Service (years, months, days):

         Active: 03 08 21
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 10                        AFQT: 58

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (8)                       Conduct: 3.6 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Badge, SSDRw1*, NDSM, NUC, SASMw1*, CAR, LOA

 Days of Unauthorized Absence: 32

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

 Chronological Listing of Significant Service Events :

900109:  Counseled concerning the loss of an Armed Forces Military Identification Card.
900211:  NJP for violation of UCMJ, Article 123a: Did on or about 891227 and 900112 with intent to defraud and for the procurement of lawful currency, wrongfully and unlawfully make to the Long Beach Naval Exchange, certain checks upon Bank of America in figures as follows, to wit: $955.00, then known that he the maker thereof, did not have sufficient funds in the bank for pay of said checks in full.
 Awarded forfeiture of $189.00 pay per month for 1 month (suspended for 3 months), restriction and extra duties for 14 days. Not appealed.
901206:  NJP for violation of UCMJ, Article 86: Did on or about 0530, 901203 without authority absent himself from his appointed place of duty, to wit: Wpns Co 1/1 and did remain absent until 0630, 901203.
 Awarded forfeiture of 7 days pay ($196.00) suspended, restriction and extra duties for 14 days. Not appealed.
910909:  Counseled for deficiencies in performance and conduct. [SNM was afforded the opportunity to achieve H.S. Diploma during his liberty hours, further, recommend punctuality at all times]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911001:  NJP for violation of UCMJ, Article 86: UA (AWOL) from 0630, 910916 to 0730, 910919 (3day/S).
 Awarded forfeiture of $216.00 pay per month for 1 month, restriction and extra duties for 14 days. Not appealed.
920105:  NJP for violation of UCMJ, Article 86: UA (AWOL) from 0200, 911202 to 2300, 911231 (29days/S).
 Awarded forfeiture of $425.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-2. Not appealed.
920529:  Counseled for deficiencies in performance and conduct. [Failure to complete the formal Aftercare Group Treatment due to excessive absences and prognosis for sobriety is poor]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920609:  NJP for violation of UCMJ, Article 112a: At CamPen CA or in the Civilian Community, on or about 920422 to 920527, did wrongfully use a controlled substance, to wit: marijuana, a schedule I controlled substance; violation of the UCMJ, Article 92: At CamPen CA on or about 0300, 920604, derelict in the performance of his duties, by sleeping on firewatch.
 Awarded forfeiture of $200.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-1. Not appealed.
920731:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse.
920825:  Applicant advised of 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.

920901:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.

920916:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct, specifically, a pattern of misconduct and drug abuse. The factual basis for this recommendation was the applicant’s five non-judicial punishments, one of which evidenced the use of a controlled substance.

921029:  Counseled for deficiencies in performance and conduct. [Failure to comply with the UCMJ, pattern of misconduct to date: i.e., CO Commander NJP 900223, CO Commander NJP 901211, CO Commander NJP 911031, BN Commander NJP 920105, BN Commander NJP 920708]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921030:  SJA review determined the case sufficient in law and fact.

921103:  GCMCA [Commanding General, 1 st Marine Division] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

921112:  NJP for violation of UCMJ, Article 113: SNM did on or about 921022, at CamPen, CA, being posted as a fire watch, was found sleeping at his post; violation of the UCMJ, Article 92: Did on or about, 921026, at CamPen CA, having knowledge of a lawful order issued by the Commanding General, not to drive on Base, an order which it was his duty to obey, failed to obey the same by wrongfully driving on Base.
 Awarded forfeiture of $200.00 pay per month for 1 month, restriction and extra duties for 14 days. Not appealed.
APPLICANT WAS NOT AVAILABLE FOR SIGNATURE OF DD FORM 214.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 921124 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).

The applicant submitted no decisional issues for consideration by the Board.

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. 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 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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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