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USMC | DRB | 2002_Marine | MD02-00974
Original file (MD02-00974.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD02-00974

Applicant’s Request
The application for discharge review, received 0200624, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030331. 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. My discharge was inequitable because it was based on one isolated incedent in 61 honorable months of service with no other adverse action. I re-enlisted December 7, 2000 for a four year contract and I received an Honorable discharge for this. I was also awarded a Good conduct medal for the period of 19960826-19990826. I obtained the rank of Sergeant in two and a half years, graduated at the top of my class at sergeants and Corporals Course, and was recognized as the NCO of the Quarter for the 1 st FSSG in January of 2000. I know I served this country well and made a difference. My discharge should reflect this. I am currently working full time with an electronics manufacturing company and working part time for a restaurant. I am a positive role model for my fellow employees and they can see that the Marines made me who I am today.

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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              960826 - 001207  HON
         Inactive: USMCR(J)                960123 - 960825  COG

 Period of Service Under Review :
Date of Enlistment: 001208               Date of Discharge: 010921

 Length of Service (years, months, days):

         Active: 00 09 14
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 66

 Highest Rank: Sgt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 (1)                       Conduct: 4.6 (1)

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NUC, SSDR, CertCom(2), MM(2), CertAppr, EXPERT RIFLE BADGE (3), EXPERT PISTOL 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 :

001208:  Reenlisted for 4 years at Headquarters Battalion, 3d Marine Division, Okinawa, Japan.

010724:  NJP for violation of UCMJ, Article 112a (2 specs):
         Specification 1: Wrongful use of a controlled substance, to wit MDMA (Ecstasy). Specification 2: Wrongful use of a controlled substance, to wit MDA (Bi-product of ecstasy). On or about 010703, while attached to DI School, Support Battalion, Recruit Training Regiment, MCRD, San Diego, CA. SNM did use a controlled substance.
         Awarded forfeiture of $788.00 per month for 1 month, reduction to E-4. Not appealed.

010724:  Substance Abuse Counseling Center, Marine Corps Recruit Depot, San Diego, CA evaluation: Applicant was evaluated on 010723 by a drug and alcohol counselor and did not meet DSM-IV criteria for drug abuse or dependence or criteria for alcohol abuse or dependence. Recommenda-tion of the SACC was that the Applicant attend the Marine Alcohol Awareness Course (MAAC) on 010808. Evaluation also stated that all Marines, regardless of pay grade, determined as having used or possessed illegal drugs will be processed for administrative separation for miscon-duct, by reason of drug abuse, per MCO P1900.16E, paragraph 6210.5.

010808:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010809:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

010810:  Commanding Officer, Support Battalion, recommended discharge under other than honorable conditions by reason of misconduct due to illegal use of drugs. The factual basis for this recommendation was the Applicant's conviction at a battalion-level NJP. Commanding Officer comments: "Furthermore, [Applicant] has shown a severe lack of maturity and professionalism with his choice to use illegal drugs. This conduct is contrary to everything expected from Non-Commissioned officers or Marines and it is apparent that he no longer deserves to be either."

010827:  Commanding General, Marine Corps Recruit Depot/Western Recruiting Region, San Diego, CA appointed the senior and other members of the Administrative Discharge Board to address the Applicant's case.

010904:  Applicant, having discussed with counsel the waiver of his right to a hearing before an Administrative Discharge Board, did waive this right and requested a general discharge. Applicant further acknowledged he is waiving this right regardless of the outcome of this request. He further acknowledged his understanding that the separation authority may disapprove his request for a general discharge and award an other than honorable discharge.

010906:  SJA review determined the case sufficient in law and fact.

010911:  GCMCA (CG, MCRD/WRR San Diego, CA) directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse and directed administrative reduction to LCpl (E-3).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010921 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 contends that, as a matter of equity, his drug use was the only incident in an otherwise honorable period of 61 months of service. The Applicant’s conduct, and not his time served, forms the primary basis in determining his characteri-zation of service. The records the Board reviewed showed there to be credible evidence that the Applicant used illegal drugs and it is this misconduct that warranted an other than honorable discharge. The Applicant’s service is equitably characterized as being performed under other than honorable conditions due to this drug abuse (use). Relief on this basis is therefore denied.
The Applicant further contends that his service record warrants an honorable discharge. With regard to separation, drug abuse (use) warrants a characterization of service normally under other than honorable conditions. A characterization of honorable or general (under honorable conditions) is not authorized unless a Marine's record is otherwise so meritorious that an other than honorable characterization clearly would be inappropriate. While the NDRB recognizes the positive aspects of the Applicant's service , the records that the Board reviewed showed there was credible evidence the Applicant willfully used illegal drugs. Upon further examination, the Board determined that the Applicant's service records did not contain any mitigating or extenuating factors or any entries so meritorious as to warrant an upgrade of the Applicant's discharge. Relief on this basis is therefore denied.

The Applicant further contends that his post service conduct, specifically his continuous employment record, warrants consideration in the upgrade of his discharge. T here 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 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. E vidence 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 sufficient documentation for the Board to consider an upgrade to his discharge. Relief on this basis is 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 P1900.16E), 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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