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USMC | DRB | 2002_Marine | MD02-00709
Original file (MD02-00709.rtf) Auto-classification: Denied

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


ex-LCpl, USMC
Docket No. MD02-00709

Applicant’s Request
The application for discharge review, received 020422, 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 listed Surry County Veterans Services as the 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 030131. 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 request the board to consider the "standard" up-grade of my up-grade (OTHC discharge) to an honorable discharge. My service record was exemplary except for one isolated incident.
I was really "in the wrong place, at the wrong time!" I believe that consideration of mittigating and extenuating circumstances will be sufficient cause for a timely upgrade of my discharge. I request favorable reconsideration and upgrade of my discharge.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character reference from Reverend, Salem Baptist Church dated March 7, 2002
Character reference from Applicant's mother dated February 18, 2002
 Applicant's DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                970709 - 971020  COG
Period of Service Under Review :
Date of Enlistment: 971021               Date of Discharge: 010531

 Length of Service (years, months, days):
         Active: 03 07 11
          Inactive: None
Age at Entry: 23                          Years Contracted: 5
Education Level: 14                        AFQT: 70

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.5 (9)                       Conduct: 4.5 (9)

 Military Decorations: None
Unit/Campaign/Service Awards: Letter of Appreciation, Certificate of Commendation (2)

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 :

970704:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
991103:  NJP for violation of UCMJ, Article 86:
 Specification: Failed to go at time prescribed to morning PT on 0615, 991018.
 Awarded forfeiture of $626.00 per month for 2 months, restriction and extra duties for 30 days. Forfeiture suspended for 6 months. Not appealed.
000802:  Applicant informed eligible but not recommended for promotion to Sgt for the month of August due to lack of responsibility.

000905:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010126, tested positive for methamphetamine.
010301:  Counseled for deficiencies in performance and conduct. [Illegal drug involvement. Methamphetamine usage identified through urinalysis confirmed by Nav Drug Lab San Diego, CA.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010314:  NJP for violation of UCMJ, Article 112a:
 Specification: Wrongfully use methamphetamine on 010126, as evidenced by a positive result on a command directed urinalysis.
 Awarded forfeiture of $691.00 per month for 2 months, restriction and extra duties for 45 days. Not appealed.
010314:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
010314:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
010322:  Applicant refused medical officer's evaluation for addictions due to a positive urinalysis for methamphetamine. Applicant signed VA treatment location statement.
010508:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was a positive urinalysis dated 26 January 2001.

010511:  SJA review determined the case sufficient in law and fact.

 010514:  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 010531 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. Relief denied.
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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