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USMC | DRB | 2002_Marine | MD02-00927
Original file (MD02-00927.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
ex-Pvt, USMC
Docket No. MD02-00927

Applicant’s Request
The application for discharge review, received 020610, 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. Subsequent to submitting the application, the Applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030319. 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 believe that my discharge was inequitable because it was based on one isolated incident in 12 months of service. Also things I did as a civilian before I entered the Marine Corps were brought into the decision to discharge me. The Marine Corps was my life, but I have now had to make another life for myself. I wanted to stay in the Marine Corps forever, but I am now accomplishing other things. I will graduate college in May of 2002 with an associates & I have a 15 month old child. I believe my discharge should be upgraded so that I can get on with my life and better myself and my family.

 2. Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning her application. Her records were reviewed on 9/22/02 and the following comments are hereby submitted: The Applicant was an excellent marine. She had this one unfortunate incident that caused this negative discharge. Because of her excellent performance the Commanding Officer of Combat Engineer Instruction Company recommended that she be granted a one year suspension. In addition 1 st Sgt D_ also recommended a one year suspension because of her excellent performance and the potation that she had. During post service she has received an associate degree, made the dean list, she has received some very complimentary letters from her employer & other associates, she has gotten married & has a son & her husband joined the corps.
We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrading her discharge to Honorable based on equity & good post service.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
Applicant's letter, undated
Degree of Associate in Science from Lewis and Clark Community College dated May 2002
Dean's List certificate dated Spring 2002
Certificate for Women's Championship Soccer Tournament dated 1999-2000
Certificate in recognition of receiving an Athletic Award dated 1999-2000
College transcript
Marriage license
Certification of Birth
Character reference dated July 13, 2002
Character reference, undated
Character reference dated July 14, 2002
Character reference from Applicant's husband dated July 16, 2002
Character reference from Applicant's mother-in-law dated July 12, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                970924 - 980622  COG

 Period of Service Under Review :
Date of Enlistment: 980623               Date of Discharge: 990625

 Length of Service (years, months, days):

         Active: 01 00 03
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 57

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (3)                       Conduct: 4.1 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

970920:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
981216:  NJP for violation of UCMJ, Article 112a:
 Specification: Wrongfully use a controlled substance between 981121 and 981130, to wit: cocaine.
Awarded forfeiture of $463.00 per month for 1 month, restriction and extra duties for 45 days, reduction to Pvt. Not appealed.
981211:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 981202, tested positive for cocaine.

981217:  Counseled for deficiencies in performance and conduct. [Illegal drug involvement, specifically cocaine use which was identified through urinalysis testing by the NAVDRUGLAB Jacksonville, FL 112351Z Dec 98.] Advised that processing for administrative separation for misconduct is mandatory per MCO P1900.16E.
981222:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, (isolated incident), not drug dependent.

990121:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse but suspended for a period of 12 months. The factual basis for this recommendation was incident of illegal drug use which resulted in her testing positive for cocaine on an urinalysis given on 30 November 1998 as confirmed by NAVDRUGLAB, Jacksonville, FL, msg 112351Z Dec 98.

990121:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
990125:  Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
990416:  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.

990610:  SJA review determined the case sufficient in law and fact.

990614:  GCMCA [Commanding General, Marine Corps Base, Camp Lejeune, NC] 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 990625 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. Despite the positive aspects of the Applicant’s record, drug abuse warranted processing for separation under other than honorable conditions. Relief denied.

The Applicant’s discharge characterization accurately reflects her service to her country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity occurred 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. However, the NDRB is authorized 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 any 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. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and evidence of a substance free lifestyle, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which she was discharged. Relief denied.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received at the NDRB, within 15 years from the date of her 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 P1900.16E), 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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