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USMC | DRB | 2002_Marine | MD02-00308
Original file (MD02-00308.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD02-00308

Applicant’s Request
The application for discharge review, received 020125, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020829. 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

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:
Copy of DD Form 214
Job/character reference dated April 14, 2002
 Copy of certificate of completion dated April 19, 2002
 Copy of award of excellence, undated
Letter of reference, undated
 Letter from applicant's mother dated May 16, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                960612 - 960806  COG
Period of Service Under Review :
Date of Enlistment: 960807               Date of Discharge: 000908

 Length of Service (years, months, days):
         Active: 04 01 02
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 31
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.2 (10)             Conduct: 4.1 (10)

 Military Decorations: None
Unit/Campaign/Service Awards: SSDR, GCM

 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 :

960611:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
000218:  NJP for violation of UCMJ, Article 86:
 Specification: Absence from appointed place of duty on 1030-1300, 6 Feb 00, to wit: Kilo Company area.
 Violation of UCMJ, Article 92:
Specification: Failure to obey and violation of MCO P1020.34F, to wit: Failure to shave face.
 Violation of UCMJ, Article 107:
 Specification: Made a false statement to ADNCO on 6 Feb 00, to wit: stated he had already taken the urinalysis.
Awarded forfeiture of $299.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
000218:  Counseled for deficiencies in performance and conduct. [SNM was on 000215 ordered for the second time by Platoon Commander to remove derogatory bumper sticker promoting drug use from vehicle. The sticker is contradictory to our core values. SNM continues to decline as of 000217.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000330:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 000324, tested positive for cocaine.
000405:  NJP for violation of UCMJ, Article 112a:
 Specification: Wrongfully use an illegal substance on 20 Mar 00, to wit: cocaine.
 Awarded forfeiture of $560.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC. Not appealed.
000405:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug use.
000406:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.

000412:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
000419:  Commanding Officer, 3d Battalion, 5 th Marines, Camp Pendleton, CA recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was applicant’s use of cocaine.

000630:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

000731:  SJA review determined the case sufficient in law and fact.
000803:  GCMCA [Commanding General, 1 st Marine Division (Rein)] 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 000908 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 introduced no decisional issues for consideration by the Board.

There is credible evidence in the record that the applicant wrongfully used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The applicant’s performance prior to the drug abuse does not mitigate his use of illegal drugs. 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. 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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