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USMC | DRB | 2002_Marine | MD02-00738
Original file (MD02-00738.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD02-00738

Applicant’s Request
The application for discharge review, received 020425, requested that the characterization of service on the discharge be changed to honorable and change reenlistment code. The Applicant requested a documentary record discharge review. The Applicant listed the Department of Veterans Affairs as representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030206. 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-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as submitted

1. DURING MY MILITARY PERIOD IN THE U. S. MARINE CORPS, I HAD FAMILY MARRIED PROBLEM. I REALIZE THAT WAS NOT AN EXCUSE, I TRY TO RECONCILE WITH MY WIFE. I WAS NICE AND OPEN MY HOUSE, TO A FELLOW U.S. MARINE AND HIS FAMILY. MY 1ST, SERGEANT, ASKE ME IF THE AND HIS FAMILY COULD MOVE IN WITH MY FAMILY I DID.

IN MITIIGATION MR. (APPLICANT), CONTEND THE DISCHARGE HE RECEIVED IS NOT EQUITABLE, MR, (APPLICANT), SERVED NET ACTIVE SERVICE NINE YEARS (9), I RECEIVED THE DECORATION MEDALS THE NATIONAL DEFENSE SERVICE MEDAL, THE SEASERVICE DEPLOYMENT RIBBON, LETTER OF APPRECIATION, 3RD AWARD MERITORIOUS, MAST (2ND GOOD CONDUCT MEDAL.

THE APPLICANT COME NOW BEFORE THE BOARD TO PRESENT THE FOLLOWING ISSUES OF PROPERTY AND EQUITABLE TO BE CONSIDERED BY THE BOARD ON THE ISSUES OF THE APPLICANT REQUEST TO UPGRADE THE CHARACTER OF HIS SEPARATION FROM THE UNITED MARINE CORPS, TO FULLY HONORABLE.

2. THE APPLICANT IN THIS CASE (APPLICANT), WAS SEPARATED FROM THE UNITED STATE MARINE CORPS, ON JULY 16, 1991. WITH AN UNDER OTHER THAN HONORABLE CONDITION DISCHARGE, SEPARATED CODE RE-4B HKK:.

 THE APPLICANT COME NOW BEFORE THE BOARD TO PRESENT THE FOLLOWING ISSUES OF PROPERTY, MATTERS, OF EQUITY, TO BE CONSIDERED BY THE BOARD ON THE ISSUES OF THE APPLICANT"S REQUEST TO UPGRADE THE CHARACTER OF HIS SEPARATION FROM THE UNITED STATE MARINE CORPS, TO FULLY HONORABLE CONDINTION.

 AS COUNSEL WE WOULD CONCEDED THAT THE APPLICANT HAD THAT INSTANCES AND THAT WAS INSULATED INCIDENTS AND NOT A PATTER, THE APPLICANT PERFORMANCE SUPPORT FOR THIS ASSERTION CAN BE FOUND IN THE SREVICE RECORDS OF THE APPLICANT.

FURTHER SUPPORT FOR OUR ASSERTION THAT THOSE WE'RE YOUTHFUL INDISCRETION LIE IN THE APPLICANT FULL AND COMPLETE POSITIVE ADJUSTMENT TO THE CIVILIAN COMMUNITY FOLLOWING MILITARY SERVICE.

THE APPLICANT HAS BEEN CONTINUOUSLY ACTIVE IN THE COMMUNITY EVENTS, ALTHOUGH THE APPLICANT ACQUISESCRED IN THE ADMINISTRATIVE DISCHARGE PROCESS THE APPLICANTS DISCHARGE DOES NOT REFLECT THE SUBSTANTIALLY HONORABLE SERVICE THE APPLICANT GAVE THE UNITED STATES MARINE CORPS, THE APPLICANT HAD 9) NINE YEARS (9), MONTHS OF MILITARY SREVICE.

THE APPLICANT RECORDS OF MILITARY OFFENSE OVER A RELATIVELY SHORT PERIOD OF TIME SHOWS MOST OF THE OFFENSE CHARGE AGAINST THE APPLICANT, TOOK PLACE IN THE LASTS, MONTHS OF HIS ACTIVE SERVICE.

PLEASE SEE THE FOLLOWING RESULTS SINCE MY DISCHARGE, IN CONNECTION FOR MY REQUEST FOR UPGRADE MY DISCHARGE, WITH SAID STATEMENT OF PETITIONS:

1. EXHIBIT, 1 ) DATED MARCH , 20, 2000. DRUGS TESTING LABORATORY:
 2, EXHIBIT, 2) DATED MARCH 30, 2000. DRUGS TESTING LABORATORY:
 3. EXHIBIT. 3) DATED APRIL 2000 DRUGS TESTUNG LABORATORY:
 4. EXHIBIT 4) DATED ARRIL 2000, DRUGS TESTING LABORATORY;
 5. EXHIBIT 5) DATED MAY 2000: DRUGS TESTING LABORATORY:
 6. EXHIBIT 6) CERTIFICATE OF GRADUATION DRUGS & ALCOHOL
 7. EXHIBIT 7) CONGRATULATION MARCH 2000
 8. EXHIBIT 8) CONGRATULATION MARCH 2000
THE APPLICANT WARRANT RECHARACTERIZATION OF HIS DISCHARGE TO FULLY HONORABLE AS A MATTER OF EQUALITY, THE APPLICANT (APPLICANT) SERVED ON ACTIVE DUTY FOR 9) YEARS NINE 9) MONTHS TEARM SERVICE.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
Statement of petition
Wisconsin Correctional Service Pretrial Service Drug Testing Laboratory Report dated March 20, 2000
Wisconsin Correctional Service Pretrial Service Drug Testing Laboratory Report dated March 30, 2000
Wisconsin Correctional Service Pretrial Service Drug Testing Laboratory Report dated April 7, 2000
Wisconsin Correctional Service Pretrial Service Drug Testing Laboratory Report dated April 24, 2000
Wisconsin Correctional Service Pretrial Service Drug Testing Laboratory Report dated May 17, 2000
Certificate of graduation
Certificate of commitment to change dated March 2000
Certificate of commitment to change dated March 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR(J)                781218 - 790808  COG
         Active: USMC              790809 - 811015  HON
         Active: USMC              811016 - 870723  HON

 Period of Service Under Review :
Date of Enlistment: 870724               Date of Discharge: 910716

 Length of Service (years, months, days):

         Active: 03 11 23
         Inactive: None

 Age at Entry: 26                          Years Contracted: 4

 Education Level: 12                        AFQT: 36

 Highest Rank: Sgt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.0 (1)                       Conduct: 2.9 (1)

 Final Enlisted Performance Evaluation Averages: Enlisted performance reports were available to the Board for review.
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, Letter of Appreciation (3), MM (2), GCM (3)

 Days of Unauthorized Absence: None

 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 :

901001:  NAVDRUGLAB, Oakland, CA, reported Applicant’s urine sample, received 900921, tested positive for cocaine.

901010:  NAVDRUGLAB, Oakland, CA, reported Applicant’s urine sample, received 900928, tested positive for cocaine.

910211:  Counseled for deficiencies in performance and conduct. (Failure to be at appointed place of duty on time, on three separate occasions; 910125, 910127, and 910131. Calling your section after approximately 15 minutes of unauthorized absence and arriving for duty approximately 3 hours late. Dereliction of duty due to culpable inefficiency, by misusing time during working hours by either sleeping, playing computer video games or performing personal business.) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910219:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 112A.
         Specification 1: Wrongful use of cocaine on 900918.
         Specification 2: Wrongful use of cocaine on 900925.
         Finding: to Charge I and the specifications thereunder, guilty.
         Sentence: Forfeiture of $800.00, reduced to Cpl. Recommending forfeiture be deferred or suspended pending move and divorce/child custody hearing.
         CA action 910301 Only so much of the sentence as pertains to reduction to Cpl, and forfeiture of $50.00 pay per month for 1 month is approved and ordered executed.
         SA action 910307 Sentence is approved and ordered executed.

910319:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
910403:  Applicant advised of his rights and having consulted 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.

910411:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer comments: "The factual basis for this recommendation was your positive urinalysis which resulted in your receiving a summary court-martial on 19 February 1991."

910606:  SJA review determined the case sufficient in law and fact.

910612:  GCMCA (Commanding General, 4 th Marine Aircraft Wing, FMF) 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 910716 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. The Applicant states his discharge was based on one isolated incident with no other infractions. There is credible evidence in the record that the Applicant used illegal drugs. This evidence of drug abuse warranted processing for separation normally under other than honorable conditions. The Applicant’s prior honorable service, prior proficiency and conduct markings, service awards, and overall service record do not mitigate his use of illegal drugs and no other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief denied.
The Applicant contends that personal problems he faced while on active duty mitigated his use of illegal drugs. The NDRB recognizes that serving in the U.S. Marine Corps is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. The record, however, is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his action. Relief denied.
Issue 2. The Board agrees with the Applicant's contention that his drug abuse does not constitute a pattern of misconduct. Administrative separation for drug abuse, however, is not based on a pattern but on a single incident. The Applicant's two positive tests for drug use and subsequent summary court-martial warranted processing for administrative separation under other than honorable conditions. The Applicant acknowledged the same in a signed letter on 910403 in which he waived his right to an Administrative Discharge Board. Relief denied.
The Applicant contends his post-service conduct should be taken into consideration. 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. The NDRB is authorized, however, to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. While evidence of a substance-free lifestyle was included with the application to the Board, it was not deemed sufficient for the NDRB to consider relief based upon post-service conduct. Additional evidence of continuing educational pursuits, an employment record, documentation of community service, and certification of non-involvement with civil authorities are other examples of verifiable documents that should have been provided to receive consideration for relief under post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged. Relief denied.
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. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. 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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