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USMC | DRB | 2002_Marine | MD02-00245
Original file (MD02-00245.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD02-00245

Applicant’s Request
The application for discharge review, received 020114, 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 020815. 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, as submitted

1. I was quite a bit younger and what I would consider more immature when the incident took place. I now know that if this same thing happened now being in the marines, I would not have gone in the pursuit of my vehicle and not went a-wall for 5 days. I had much more pressure from my family then, I just didn't know how to handle the theft of my car, along with the crazy actions my wife put me through. Again, I would like to restate for the record, that I was never court-martialed and served some days in the brig and continued working in Marines for a while afterwards. I wanted to stay and my peers and NCO's wanted me to stay. I drove my battalion commanders tank. I was a good M1A1 tank driver. They tried their best to keep me in. They helped me straighten out everything in my life, that was wrong and even found my car, for this I am grateful to the Marine Corps and the friends I had while there. I am now a truck driver for a big trucking company. I'm making the best out of my life.

 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: USMC              None
         Inactive: USMCR(J)                961122 - 970720  COG

 Period of Service Under Review :
Date of Enlistment: 970721               Date of Discharge: 990224

 Length of Service (years, months, days):

         Active: 01 05 19
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (3)                       Conduct: 4.2 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: LOA, Marksman Rifle Badge

 Days of Unauthorized Absence: 16

 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 :

961113:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
980820:  Substance Abuse Evaluation indicated drug abuse (isolated incident).
980910:  NJP for violation of UCMJ, Article 86: UA (AWOL) from 1201, 980705 to 0945, 980722 (16 days/A) from 2d TkBn, 2d MarDiv; violation of UCMJ, Article 87: Through neglect missed movement of Co C, 2d TkBn, 2dMarDiv to Fort Pickett, VA, on or about 980805; violation of UCMJ, Article 112a: At an unknown location on or before 980724, wrongfully used marijuana.
 Awarded forfeiture of $463.00 pay per month for 2 months (suspended for 4 months), restriction and extra duties for 45 days, reduction to E-1. Not appealed.
981202:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the admission of illegal drug use.
981202:  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.

981202:  Commanding Officer, 2d TkBn, 2d MarDiv recommended that applicant be retained in the Marine Corps.

990111:  SJA review determined the case sufficient in law and fact.

990208:  GCMCA [Commanding General] 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 990224 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. There is credible evidence in the record that the applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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. Despite the fact that members of his chain of command recommended to the separation authority that the applicant be retained for further service, 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. Relief not warranted.

The applicant 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. Representation at a personal appearance hearing is recommended but not required.


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 “ afls14.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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