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USMC | DRB | 2002_Marine | MD02-00954
Original file (MD02-00954.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD02-00954

Applicant’s Request
The application for discharge review, received 020619, 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 the American Legion 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 030410. 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. (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant release under honorable conditions.

 2. (Equity Issue) This former member requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                000125 - 000201  COG

 Period of Service Under Review :
Date of Enlistment: 000202               Date of Discharge: 010309

 Length of Service (years, months, days):

         Active: 01 01 08
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 37

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: Sharpshooter Rifle Badge

 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 :

000629:  Counseled for deficiencies in performance and conduct (Losing Armed Forces Identification Card). Necessary corrective actions explained, sources of assistance provided, disciplinary warning issued.
010108:  NAVDRUGLAB SAN DIEGO CA reported Applicant’s urine sample, received 001229, tested positive for THC.

 010122:  NJP for violation of UCMJ Article 112a:
 Specification: Use of a controlled substance within 14 days prior to 001220, to wit: THC.
Awarded forfeiture of $500.00 per month for 2 months, restriction and extra duties for 30 days, reduction to PFC. Not appealed.
010222:  Applicant refused medical officer evaluation for dependency.

010222:  Applicant acknowledges and signs VA Treatment Location Statement from Naval Addictions Rehabilitation and Education Department, Naval Hospital, Camp Pendleton, CA.

010222:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
010222:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010223:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was the Applicant's documented use of controlled substance (THC).

010228:  SJA review determined the case sufficient in law and fact.

010306:  GCMCA (Commanding General, 1 st Marine Division, (Rein)) 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 010309 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, through counsel, contends that his overall service record is sufficient to warrant an honorable characterization of service. The Board found that the Applicant's discharge was proper and equitable as there is credible evidence in his service record of illegal drug use. This evidence of drug use warranted processing for separation, normally under other than honorable conditions. While the Board recognizes the positive aspects of the Applicant's service record, these aspects do not mitigate his use of illegal drugs. Further, his nonjudicial punishment, the recommendations from his chain of command, and the review by legal authority all indicate the propriety and equity of the discharge process. No other service characterization more clearly describes the circum-stances surrounding the Applicant’s processing for administrative separation. Relief is therefore denied.

Issue 2: The Applicant, through counsel, contends that his post-service conduct, to include employment and non-involvement with civil authorities, should be considered in the recharacterization of his discharge. There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. However, the NDRB is authorized to consider post-service factors in determining if a discharge warrants recharacterization. Outstanding post-service conduct, 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 may be considered. 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. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct. At this time, the Applicant has not provided such documentation for the Board to consider an upgrade. Relief on this basis, therefore, is denied.

The Applicant is advised that changes to reenlistment codes are beyond the authority of the NDRB and that he should address this issue to the Board for Correction of Naval Records.

 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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