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USMC | DRB | 2002_Marine | MD02-00978
Original file (MD02-00978.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-00978

Applicant’s Request
The application for discharge review, received 020625, 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.

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. To begin I have learned more these last 2 years than I have ever learned before. Before my discharge a lot happened. When I first joined the Marines I was excited. I moved up in rank quick. I was a LCpl. before I graduated MCT. And that really motivated me. But when I arrived to my duty station a lot changed. My command threatened me and wouldn't allow me to go to college. It was nothing like I suspected. My command underwent investigation also. I was threatened by my superior LCpl. who was busted down from Sgt. and by my Gunny. I no longer wanted to be a Marine. Especially when I found out I couldn't attend college. I was only18 yrs. old at the time young and not making the right decisions. I have been a good citizen since discharge. I've volunteered at churches and schools. I'm also pursuing my goal to become an actor. My ability to serve was impaired by my youth and immaturity. If I could do it all again things would be a lot different. My ability to serve was impaired by my deprived background. My father was arrested before I left to the service. I had a lot of anger built up. My home environment wasn't the best either. I just want a chance to do better than my parents. and be able to financially support my children. This upgrade will give me that opportunity. I also tried to apply for reassignment. My command only gave me the run around and told me to forget it. I really would love the chance to start over with a clean slate. I promise to use this chance to do better.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
Eleven pages from Applicant's service record
Standard Form 180 dated November 19, 2001
Character reference from Pastor, Word of Truth, Christian Ministry, undated
Character reference from Senior Minister, Better Way Seventh Day Baptist Church, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                980717 - 990712  COG

 Period of Service Under Review :
Date of Enlistment: 990713               Date of Discharge: 001221

 Length of Service (years, months, days):

         Active: 01 05 09         Does not exclude lost time
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 37

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (4)                       Conduct: 3.7 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: Unknown

 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 :

980716:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
000918:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence for a period of about 1 week.
         Charge II: violation of the UCMJ, Article 91 (4 specs):
         Specification 1: Disrespectful towards a superior non-commissioned officer.
         Specification 2: Disobeying a lawful order.
         Specification 3: Disrespectful towards a superior non-commissioned officer.
         Specification 4: Disobeying a lawful order.
         Charge III: violation of the UCMJ, Article 112a (2 specs):
         Specification 1: Possession of marijuana on 000422.
         Specification 2: Use of marijuana on 000422.
         Finding: to Charge I, II, specification 1-4 and Charge III, specification 2 thereunder, guilty. Charge III, specification 1 thereunder, not guilty.
         Sentence: Hard labor for 21 days, restriction for 30 days, reduction to Pvt.
         CA action 000925: Sentence approved and ordered executed.

001005:  Criminal Investigation Division report.
001019:  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 summary court-martial on 18 September 2000 for unauthorized absence, disrespect towards a superior non-commissioned officer, disobeying a lawful order, and unlawful use of marijuana.

001102:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
001107:  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.

001121:  Medical evaluation for drug abuse found the Applicant does not meet criteria in accordance with DSM IV for substance abuse or dependence.

001207:  SJA review determined the case sufficient in law and fact.

001218:  GCMCA [Commanding General, 3d Marine Aircraft Wing] 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 001221 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. There is credible evidence in the record that the Applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. While he may feel that his immaturity, youth, background and problems with his command were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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. 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, 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 documentation 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 he was discharged. 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 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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