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USMC | DRB | 2002_Marine | MD02-00814
Original file (MD02-00814.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD02-00814

Applicant’s Request
The application for discharge review, received 020515, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 030214. 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 entered the Marine Corps as a very young man with no prior drug or criminal behavior or convictions. This was my only offense. I feel that I have paid for it.
2. During my active duty I was a hard working loyal Marine. I always had first class PFT’s, was recommended for the Yankee White Program, entered into CQB. My respect for the Corps was strong… even as a child growing up. I wish I had been given a second chance to prove my loyalty.
3. Asking for an upgrade of my discharge to General/Under Honorable Conditions so that I may pursue the career as a firefighter in my community.

 4. I have enclosed information on my life since leaving the Corps. I hope that you will see that I am a good citizen of the U.S.A. Thank you God bless America.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Copy of Medical Reports (6 pages)
 Copy of Certificate of Achievement (Security Element Course 2-96)
 Copy of Staff Judge Advocate's Separation Proceedings
Copy of Orders for the Yankee White Program
 Copy of Transcript from Del Mar College
 Copy of Transcript from Austin Community College
Character Reference Letter from Applicant's Mother
Letter from Applicant
Typed Version of Issues

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
          Inactive: USMCR(J)                950106 - 950129  COG
Period of Service Under Review :
Date of Enlistment: 950130               Date of Discharge: 960816

 Length of Service (years, months, days):
         Active: 01 06 17
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 42
Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.0 (5)                       Conduct: 3.8 (5)

 Military Decorations: None
Unit/Campaign/Service Awards: Rifle Marksman Badge, NDSM

 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 :

950105:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
960304:  Counseled for deficiencies in performance and conduct. [UA from appointed place of duty from 1300 on 960226 and did not return until 1600 on 960226.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960430:  NJP for violation of UCMJ, Article 112a: At an unknown location, on or about 960405, smoked marijuana, a controlled substance.
 Awarded forfeiture of $437.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-1. Not appealed.
960628:  Unconditional waiver of Administrative Discharge Board.

960703:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
960712:  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.

960715:  Medical evaluation indicates Applicant is motivated for treatment.

 960716:  Counseled for deficiencies in performance and conduct. [Concerning illegal drug usage of THC (positive identification by NAVDRUGLAB San Diego, CA 182031Z APR 96).] Advised that processing for administrative separation for misconduct due to drug abuse is mandatory per MARCORSEPMAN.

960717:  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 non-judicial punishment dated 960430.

960812:  SJA review determined the case sufficient in law and fact.

 960813:  GCMCA [Commanding General, 1 st Marine Division] 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 960816 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 and 2. There is credible evidence in the record that the Applicant used illegal drugs. Regardless of the positive aspects of the Applicant’s service, drug abuse warranted processing for separation, normally under other than honorable conditions. The discharge was proper and equitable. Relief denied.
Issues 3 and 4. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. 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 18 Aug 95 to 30 Jan 97.

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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