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USMC | DRB | 2002_Marine | MD02-00596
Original file (MD02-00596.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD02-00596

Applicant’s Request
The application for discharge review, received 020329, 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 021217. 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. Throughout my four years as an Marine I have maintained the status of being an average Marine. I have never been NJP, or been put on restriction.

2. LCpl (Applicant) has received a good conduct medal and an overseas ribbon while serving over in Okinawa, Japan for base food service.

3. LCpl (Applicant) has received two meritorious mast, a letter of appreciation, and a good conduct medal.

4. LCpl (Applicant) was promoted to the rank of Cpl in November of 2000.

5. LCpl (Applicant) admits to making the mistake of being at the wrong place at the wrong time and is therefore guilty of popping positive on the urinalysis test, but felt that it was unjust to be discharged with an other than honorable discharge. LCpl (Applicant's) test results shows that I was thirty two NG/ML over the DOD's cutoff.

6. Since LCpl (Applicant's) end of service the former Marine was unable to receive any unemployment assistants, constantly had a hard time getting hired for any type of job, and was basically forced to be a good citizen.

7. Automatic reduction of rank which honestly does not make any deference especially if Marine is one week away from being out of the service.

8. The punishment that was given from the admin-seps board (other than honorable) seems to be another word for dishonorable.

9. LCpl (Applicant) understands being discharged from the Marines, but does not understand that being of a first offense, why Col. J.L. G_ would deny me of any court-martial.

10. Only having a week and two days of preparation is pretty hard considering the work hours, having formations four to five times a day, not being able to drive on base, having to find other Marines as means of transportation to properly check-out.

[Extracted from second application and attachments]

11. Throughout my four years as a marine I have maintained the status of being an average marine. I have never been NJP' or been put on restriction.

12. I understood being discharged from the marines, but I do not understand that being of a first offense, why Col. J.L. G_ would deny me of any court-martial.

13. Since my end of service, I have been unable to receive any type of unemployment assistance, and have had a hard time getting hired for any type of job. I have been forced to suffer for one mistake.

 14. Throughout my four years as a Marine I have maintained the status of being an average Marine. I have never been put on restriction throughout the course of my four years even though I have received two counseling sheets. I received the first counseling sheet on 0 1 April 1999 for being twelve minutes late to my appointed place of duty. The second counseling sheet was received on 02 April 1999 for two hours and thirty minutes for missing an event that consisted of an Obstacle Course that was in a different area than 22 area. I did not have any means of transportation, or way to get in contact with my superiors until the event was over. Since those two incidences I have gotten myself together by completing five different MCI's, received two Meritorious Masts, one Letter of Appreciation, and a Good Conduct Medal. MCI's consisted of Counseling for Marines, Intelligence brief (Southwest Asia), Fundamentals of Marine Corps Leadership, Personal Financial Management, and Terrorism Awareness. The first Meritorious Mast was received for working with Storage Warehouse (Bins Section). The second Meritorious Mast was received for working with Supply Company Office. The Letter of Appreciation was received for working one month with Battalion Buildings and Grounds Maintenance. In order to receive a Good Conduct Medal a Marine has to maintain a good record for three of the four years that was signed for. I cannot find a copy of my Good Conduct Medal, but it shows as proof on my DD214 form. I have also received an Over- Seas Ribbon for serving over 'in Okinawa, Japan for Base Food Service during my first tour of duty. My last promotion was in November of 2000 to the rank of Corporal that shows the change was for the good. Unfortunately I do admit to making a bad decision, which caused me to fail on the urinalysis test on the date of March 13 th 2001. The test results show that I was thirty-two ng/ml over the DOD's cutoff for the drug known as THC. Since my End of Service (EAS), I have been unable to receive any Unemployment Assistants, constantly applying to many businesses and getting turn away because of my DD214, and was basically forced to be a good citizen. Because of one mistake I cannot seem to get situated which is causing me alot of stress and aggravation from day to day. I have encountered other Ex-Marines in the past years that have gone through some similar, if not worst situations and were granted an Honorable Discharge. I do understand being discharged from the Marines for what I did, but do not understand that being of a first offense, why my discharge was "Other Than Honorable", and why Col. J. L. G_ would deny me of any type of Court-Marshals. Only having one week and two days of preparation is pretty hard to prepare for an Admin-Sep Board. Considering the long working hours, having formations four to five times a day, and not being able to drive on base because of the Notification of Intent to Revoke Driving Privileges. Also having to find other means of transportation by asking other Marines too properly help me checkout of the Marines Corps. Attached are copies of the following papers, which support the case of my unjust discharge:

A) Copy of MCI's
B) Copy of DD214 which shows proof of a Good Conduct Medal
C) Copy of two Meritorious Mast Letters
D) Copy of A Letter of Appreciation
E) Copy of Urinalysis Test Results
F) Copy of Admin-Sep Board Papers
G) Copy of Notification of Intent to Revoke Driving Privileges
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214 (2 copies)
Letter of Appreciation dated June 25, 1999 (2 copies)
Meritorious Mast dated September 27, 1999 (2 copies)
Meritorious Mast dated April 25, 2000 (2 copies)
 Copy of MCI's (Personal Financial Management, Terrorism Awareness for Marines, Fundamentals of Marine Corps Leadership, Intelligence Brief: Southwest Asia, Counseling for Marines)
Urinalysis Test Results dated March 13, 2001
Copy of Admin-Sep Board Papers (9 pages)
Copy of Notification of Intent to Revoke Driving Privileges

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                970221 - 970427  COG

 Period of Service Under Review :
Date of Enlistment: 970428               Date of Discharge: 010427

 Length of Service (years, months, days):

         Active: 04 00 00
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 10                        AFQT: 40

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (9)                       Conduct: 4.4 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, MM (2), Letter of Appreciation

 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 :

970220:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
990313:  Counseled for deficiencies in performance and conduct. [Positive urinalysis sample THC.] Necessary corrective actions explained.
990405:  Counseled for deficiencies in performance and conduct. [Unauthorized absence 0630-0642, 1 Apr 01 and 0645-0915, 2 Apr 01.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
991013:  Counseled for deficiencies in performance and conduct. [Unauthorized absence.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010308:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010302, tested positive for THC.

010326:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
010326:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
010402:  Applicant refused evaluation for addictions.

010403:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was use of an illegal substance.

010416:  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.

0104XX:  SJA review determined the case sufficient in law and fact.

010425:  GCMCA [Commanding General, 1 st Force Service Support Group] 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 010427 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).

Issues 1-6, 9-14. Each case before the Board is considered on its own merits. The Applicant certified that he understood the Marine Corps policy on illegal drug use. The Applicant states his discharge was based on one isolated incident in over three years of average service with no other infractions. 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. Separation under other than honorable conditions for drug abuse is proper and equitable even if the Applicant had no prior infractions, honorable proficiency and conduct markings, awards, and promotions. Involuntary separation under other than honorable conditions for drug abuse is proper and equitable with or without charges preferred for non-judicial or judicial punishment. The amount of NG/ML his urine sample exceeded the DOD standard for a positive urinalysis does not provide a basis for relief. The Board found no inequity or impropriety concerning the Applicant’s rights in the preparation and proceedings of his Administrative Discharge Board. Relief denied.

Issues 7-8. The Board has no authority to restore rank or assign a relative status of one type of characterization of service over another. 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 inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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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