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USMC | DRB | 2002_Marine | MD02-01337
Original file (MD02-01337.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-01337

Applicant’s Request
The application for discharge review, received 20020920, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a 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 20030812. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 my drug use only involved a small amount of marijuana, when I was off duty and out of uniform; it was really a very minor offense, which never endangered anyone, "Simple Possession ". Also there were not enough other incidents to warrant a "UNDER OTHER THAN HONORABLE CONDITIONS" discharge and so warrants an upgrade to honorable. Ref. DRB/BCMR 1978 decision, Discharge Index key numbers [A94.30], [A40.041, and [A85.02].
The above arguments/reasons applies to my case for upgrade to honorable. I was not a drug user nor was I a drug supplier/dealer. I don't think that 1 NJP and 1 SCM over a 4 year period of service is very frequent; that's only one every 2 years on an average. My disciplinary record does not fairly describe my whole tour, which was pretty good. I was very stupid to do a friend a favor and it has cost me dearly. Now that I am much older and mature I understand that what I did was very wrong and stupid. But to be punished (with a Under Other Than Honorable Conditions Discharge) for the rest of my life is unfair. This was my first and only drug offense while in the military. I was randomly drug tested thru out my years in the military, at the time of my separation from the military, and the results were all negative. I also signed a military drug waiver at time of my enlistment. Also, other uniform services such as the (Air Force and Army) normally give a first term enlistee convicted of drug abuse a 2 nd chance and/or in the military. They are not normally separated for drug abuse. I was not offered a 2nd chance. And under today's current standards as a first term enlistee I would not have received a "less than honorable discharge ", and so warrants an upgrade to Honorable. In most cases such as my case, a first term enlistee would be required to attend drug/alcohol rehabilitation programs, fined and/or given other lesser forms of punishments. Please be aware that drug/alcohol rehabilitation/counseling was offered to me prior to my separation, however I refused it because it was explained to me that I would be separated from the military regardless and would not be allowed to reenlist whether or not I attended drug/alcohol rehab/program. Also, as a none drug user I felt drug rehab would not help me in anyway and would be a waste of the Marine Corp. time. The Marine Corp decision to separate me was already in stone. I believe now that maybe I should have attended drug/alcohol rehabilitation when given the opportunity too. The "Marine Corps Separation and Retirement Manual", Para 5d, states that " Marines separated for drug abuse will be screened for drug dependency at a Substance Abuse Counseling Center (SA CC) and if diagnosed as drug or alcohol dependent, will be referred to the Department of Veterans administration (DAV) at time of separation ". I was not referred as required during my separation from the Marine Corp.; I was simply given the option but discouraged to go. Also, for the record, I did volunteered to be drug tested during my discharge proceeding in hopes that it will help me, however my superiors denied my request and I was then discharged Under Other Than Honorable Conditions.

2. Also, I was so close to finishing my tour that it was unfair to give me a discharge under other than honorable conditions and so warrant an upgrade to Honorable. Ref. DRB/BCMR 1978 decision, Discharge Index Key number [A 92.20].
I made a serious mistake in my life; it's nobody fault but my own and I have learned to except it and to live with it. I did complete four years in the Marine Corp. I also participation successfully in "Operation Vigilant Sentinel" and "Operation Southern Watch” while deployed aboard the USS Essex.

3. My discharge was inequitable because my ability to serve was impaired by my youth and immaturity and so warrants an upgrade to Honorable. Ref. DRB/BCMR 1978 decision, Discharge Index Key numbers [A 93.021, [A 93.12], [A 93.12]. and [A 93.201. This argument/reason applies to my case for upgrade to honorable because I was not sure at my age at that time whether or not I was ready to accept the responsibilities required to be in the military. In other words, I was not convinced that I wanted to be in the military. I was nineteen years of age and was not ready for the military. Everyone wanted me to join the military but I knew that I was not ready. Please understand that I came into the U.S. Marines Corp under the Delayed Enlisted Program encouraged by my high school classmate. He and I both enlisted under the buddy system this made things a little better, however when he and I were separated, I realized that joining the military was the wrong thing for me to do. I felt alone, lost and confused. My youth and immaturity at that time stood in the way of my thinking. Unfortunately, I had already delayed enlisted. In fact, when it came time for me to be inducted into the Marine Corp my delayed enlisted friend and I ran away from the induction center in Oakland California because we did not want to follow orders. My father intervened by talking to my recruiter and I was given an additional 30 days extension to decide to be inducted into the Marine Corp voluntarily. It was explained to me by my recruiter that if I did report in 30 days I would be taken away involuntarily by the Marine Corp police. I did report to the military induction center Oakland CA. 30 days later as agreed, was immediately inducted into the military and shipped off to basic training. I want the Discharge Review Board to understand that I'm not proud of my military behavior and/or misconduct. In fact now that I am much older and mature I'm quite embarrassed over my action and only wish that I could; 1. Personally apologize to my Commanders, Recruiter, Military Superiors, and Friends) they all tried so hard to help me in anyway they could. I would like to apologize also to those people who wrote letters of recommendation required for me to enlist in the Military. Unfortunately, two of these people (Lt. Col M_ and Mr. W_) are deceased now (Ref.- attached preinduction letters of recommendation). They too trusted and believed in me even when I did not believe in myself but I let them all down. Today, I'm still being haunted by this and my failures and probably will be for a long time. 2. I wish also that one day that I could re-enter the military at my age of (26) and maturity today. I know that my age and immaturity was a BIG, BIG factor in my negative behavior drug/alcohol, AWOL, driving with out a valid drivers license, etc. Thru all of this I 'm still proud to be a U.S. Marine and I will always be proud. But, I am not proud of how I abuse it and the opportunities offered. I truly believe that this Board, and those above that trusted and believed in me yesterday would be very proud of me today. My parents are very proud today. Again, my youth and immaturity got in the way of my thinking and was the primary cause of my problems including financial and personal ones, all which lead to my being separated under other than honorable conditions.

4. I have been a good citizen since my separation form the military, and so warrant an upgrade to honorable. Ref. DRB/BCMR, Discharge Index Key number decision [A92.22]. Since my discharge from the Marine Corp I have been concentrating on getting my life in order and during the right things. Some of the right things that I have accomplished are as follows; I'm happily marriage with four kids, I go to church but not faithfully but I do go, I'm a unionized carpenter and currently attending training under the apprenticeship program (classroom and on the job training). I will complete this program in approximately two years from now. I also perform odds carpenter jobs for my neighbors and friends. I have not been in any trouble since my discharge from the military other than a minor traffic ticket. My financial problems are getting better with time. I have worked for several Construction Companies off and on since my Military separation. However, I have not obtained a permanent position because of my current status (training). Of course, this type of work has its low and high peeks seasons and that makes it difficult at times to make ends meet but I manages so far. I recently applied to the State of California to become a California State Prison Guard for the "California Department of Corrections ".

5. Your consideration for the upgrade of my current Military Discharge from "Under Other Than Honorable Conditions" to "Honorable" would be mostly appreciated

Again, I apologize and thank you for the time and a 2nd chance.

 Sincerely

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Applicant’s father’s letter to the Recruiter dtd Apr 21, 1995 (pre-enlistment)
Character Statement from Lt.Col, Ret. USAF, dtd Apr 20, 1995 (pre-enlistment)
Character Reference ltr from Mrs. J_ G_, dtd Apr 1995 (pre-enlistment)
Newspaper clippings of Applicant’s sport accomplishments (10 pages) (pre-enlistment)
Personal Recommendation from B_ W_ dtd Apr 16, 1995 (pre-enlistment)
 Applicant’s Health Record Page declining Medical Officer’s Evaluation, dtd Feb 23, 1999
 21 pages of Service Record Book, including Separation Authority letter

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                940531 - 950425  COG

 Period of Service Under Review :
Date of Enlistment: 950426               Date of Discharge: 990428

 Length of Service (years, months, days):

         Active: 04 00 03 (Doesn’t exclude confinement time.)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 34

 Highest Rank: LCPL

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                          Conduct: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: DSNM, AFEM, SSDR

 Days of Unauthorized Absence: 13

*No Marks Found in the service record.


 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 :

940527:  Applicant certified a complete understanding of the Marine Corps’ policy on the illegal use of drugs.

970601:  Applicant eligible but not recommended for Cpl for month of June because of recent NJP.
970604:  NJP for violation of UCMJ, Article 86: UA from 0730, 970506 to 0620, 970519 (13 days).
 Awarded forfeiture of 7 days pay totaling $258.00, restriction and extra duties for 14 days. Not appealed.
970821:  Counseled regarding deficiencies, specifically, driving on state suspension. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.

970911:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 91.
         Specification: Insubordinate conduct toward noncommissioned officer.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Confinement 30 days, forfeiture of $600.00 pay per month for 1 month, reduced to E-1.
         CA action 970911: Sentence approved and ordered executed.

970920:  Applicant eligible but not recommended for Cpl for 4 th Prom Qtr due to not meeting the high standards required for selection as a NCO in 1stBn, 1lthMar.

971028:  Counseled regarding deficiencies, specifically, 1 NJP and 1 Summary Court Martial. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.

971203:  Medical officer’s provisional diagnosis of alcohol dependence.

980225:  Counseled regarding deficiencies, specifically, losing his I.D.- failed to report the lost I.D. card until 1 week later, failed to attend SACO meetings and has had a problem adhering to verbal orders. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.

980401:  Applicant eligible but not recommended for PFC due to lack of maturity.

980421:  Applicant eligible but not recommended for PFC for month of June because of recent NJP.

981203:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 112A.
         Specification: On or about 21 Jul 98 was in possession of a controlled substance.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Confinement 30 days, forfeiture of $611.00 pay per month for 1 month, reduced to E-1.
         CA action 981203: Sentence approved and ordered executed.
        
990119:  Applicant eligible but not recommended for PFC for month of Feb because of recent court martial conviction.
990209:  Applicant eligible but not recommended for PFC for month of Mar because of recent court martial conviction.
990311:  Applicant eligible but not recommended for PFC for month of Apr because of admin separation.

990223:  Naval Hospital, Camp Pendleton, CA, Naval Addiction Rehabilitation and Education Dept: Applicant refused medical officer’s evaluation.
990406:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990407:  Applicant eligible but not recommended for PFC for promotion month of May because of pending admin separation.

990415:  SJA review determined the case sufficient in law and fact.

990421:  GCMCA [Commander, 1 st MARDIV (Rein)] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to drug abuse with the primary basis to be by reason of misconduct due to drug abuse.

[Partial discharge administrative package missing.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990428 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 possessed illegal drugs. Even one instance of drug possession warranted processing for separation, normally under other than honorable conditions. The Board found no merit to the Applicant’s claim that under today’s standards his characterization of service would be any different. Relief denied.

Issue 2. Given the Applicant’s record of misconduct and drug possession, the Board found no inequity in the fact that the Applicant was discharged under other than honorable conditions even though he was within three months of completing his enlistment. Relief denied.

Issue 3. The Board found that the Applicant’s age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity and youth 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 NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore denied.

Issues 4-5. 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 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, 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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