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USMC | DRB | 2002_Marine | MD02-00637
Original file (MD02-00637.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD02-00637

Applicant’s Request
The application for discharge review, received 020403, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to convenience of the government. The Applicant requested a personal appearance hearing discharge review before a traveling panel closest to Tampa, FL. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, D.C. Area. The Naval Discharge Review Board (NDRB) also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030116. 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 and narrative reason 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

1. My discharge was inequitable because it was based on one isolated incident in 18 mos of service with no other adverse action.
I am requesting a reenlistment code change to RE-1 and Corresponding Separation Program Number/Designator.

 The following issues are the reasons I believe my discharge should be upgraded to honorable. If you disagree, please explain, in detail, why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

1. I had combat service: During Operation Desert Shield/Storm I received excellent evaluations and handled my traumatic situations while maintaining mental stability. What is not mentioned in my DD214 are the horrible conditions I had to endure, such as friendly fire, chemical warfare, and "experimental medication" Anthrax.

2. When I got back from overseas, I just couldn't adjust to state-side duty; clearly I understand there are rules and regulations while in the service, however after returning from the Middle East, I was not making wise decisions due to mental repercussions from the war.

3. My use of drugs impaired my ability to serve: this reason is my hardest to defend. I realize that I made a poor decision to jeopardize my military career due to immaturity. I feel the military was more aggressive wanting to discharge me, rather than offer counseling. I was given the ultimatum of either the Brig time or discharge. I chose discharge.

4. Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.

Since 6/1/94 I have maintained the same job with public works department for the City of Tampa. I own a home and support a beautiful family. I realize I made poor decisions 11 years ago as a naive young man, however, an Undesirerable Discharge should not hinder me for life. I have enclosed additional documents to support my request.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
2 Copies of City of Tampa Service/Trades Employees Performance Evaluations (4 pages each)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                890731 - 900327  COG
Period of Service Under Review :
Date of Enlistment: 900328               Date of Discharge: 920117

 Length of Service (years, months, days):
         Active: 01 08 28
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 38
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.9 (6)                       Conduct: 3.7 (6)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM, Rifle Marksman Badge, SASM (w/2b*)

 Days of Unauthorized Absence: 19
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 :

890728:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
910603:  Counseled for deficiencies in performance and conduct. [UA from appointed place of duty and disobedience of a lawful order from a NCO in the USMC.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910730:  Counseled for deficiencies in performance and conduct. [Failure to comply with barracks regulations which resulted in a violation of the UCMJ, having a visitor of the opposite sex in your BEQ room.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910809:  Counseled for deficiencies in performance and conduct. [Lackadaisical attitude towards work manifested by tardiness for formations, unsatisfactory inspection results and a generally poor attitude toward service and its responsibilities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910920:  NJP for violation of UCMJ, Article 86: Did at Det A, MWCS-38, MACG-38 fail to go at the time prescribed to Det A PT at 0645 on 910808, violation of UCMJ, Article 86: UA from 1300, 910808 to 1000, 910827 (19 days), from Det A, MWCS-38, MACG-38, violation of UCMJ, Article 92: Did at Det A, MWCS-38, MACG-38, barracks #666, room #213, 910703, violate GruO 11101.4B, enclosure 2, paragraph 10, by having a female in room, violation of UCMJ, Article 112a: Did at Det A, MWCS-38, MACG-38, or in the surrounding community on or before 910806, wrongfully use amphetamines, violation of UCMJ, Article 112a: Did at Det A, MWCS-38, MACG-38, or in the surrounding community on or before 910806, wrongfully use methamphetamines, violation of UCMJ, Article 112a: Did at Det A, MWCS-38, MACG-38, or in the surrounding community on or before 910806, wrongfully use cocaine, violation of UCMJ, Article 112a: Did at Det A, MWCS-38, MACG-38, or in the surrounding community on or before 910828, wrongfully use cocaine, violation of UCMJ, Article 112a: Did at Det A, MWCS-38, MACG-38, or in the surrounding community on or before 910905, wrongfully use cocaine.
 Awarded forfeiture of $422.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to PFC. Not appealed.
910925:  Drug/Alcohol Evaluation indicates Applicant is not amenable for drug abuse treatment, recommend separation for habitual abuse, after medical evaluation.
911204:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
911204:  Applicant advised of his rights and having elected 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.
911209:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was NJP for 2 specifications of UA, violation of GruO and 5 specifications of wrongful drug use. Page 11 on 910603 for UA and disobeying NCO, page 11 on 910730 for disregarding barracks regulations, page 11 on 910809 for lackadaisical attitude.

911220:  SJA review determined the case sufficient in law and fact.
911223:  GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 920117 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 1-3. 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. No other narrative reason other than that of misconduct for drug use more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion for multiple instances of illegal drug use and adverse counseling entries on other occasions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. The Applicant’s combat service and experiences do not mitigate his misconduct. While he may feel that his immaturity, drug use, and mental state were factors that contributed to his actions, the record clearly reflects that he was unfit for further service. 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. Relief denied.
Issue 4. 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 P1900.16D), 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 “ 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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