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USMC | DRB | 2003_Marine | MD03-00148
Original file (MD03-00148.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD03-00148

Applicant’s Request
The application for discharge review, received 20021029, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance discharge review before a traveling panel closest to Atlanta, Georgia. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030926. 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

Prior to the documentary discharge review, the Applicant introduced no issues, as Block 8 on the DD Form 293 is blank.
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)                980609 - 990606  COG

 Period of Service Under Review :
Date of Enlistment: 990607               Date of Discharge: 011004

 Length of Service (years, months, days):

         Active: 02 03 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 5

 Education Level: 12                        AFQT: 75

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (7)                       Conduct: 4.2 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: Letter of Appreciation, SSDR

 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 :

980604:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
000222:  Counseled for deficiencies in performance and conduct. [Academic drop from the AEA course of instructions.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000628:  Counseled for deficiencies in performance and conduct. [Failure to use sound judgment and exercise positive leadership. Specifically, on 000610 you observed underage Marines at a local hotel room party where alcohol was being served and failed to take charge as a more senior Marine.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010419:  Counseled for deficiencies in performance and conduct. [Engaged in inappropriate sexual conduct in the public areas aboard Kadena Air Base to include Club Pulse in the Gate Two district of Kadena Air Base in violation of Liberty Campaign Plan. Conduct such as this detracts from the good order and discipline of the Marine Corps.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010508:  NAVDRUGLAB [San Diego, CA], reported Applicant’s urine sample, received 010430, tested positive for MDA (Ecstasy).

 010527:  NJP for violation of UCMJ, Article 112A:
 Specification: Wrongful use, possession, etc., of controlled substances, as evidenced by the message from NAVDRUGLAB San Diego, CA dated 081900Z May 01, Applicant’s urine sample was found to be positive for the drug MDMA, commonly known as “Ecstasy.”
Awarded forfeiture of $607.00 per month for 2 months, restriction and extra duties for 45 days, reduction to LCpl. Not appealed.
010802:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

010803:  Counseled for deficiencies in performance and conduct. [Violation of Article 112A, wrongful and illegal drug use of a controlled substance MDMA (Ecstasy) as evidence by urinalysis confirmed by Navy Drug Lab San Diego, CA message DTG 081900Z May 01 and NJP of 010527.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010809:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.
010809:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse. The factual basis for this recommendation was an established pattern of misconduct as evidenced by Applicant’s three derogatory page 11 entries, and a wrongful (MDA/MDMA-Ecstasy) drug abuse incident, as evidenced by nonjudicial punishment of 27 May 2001.

010815:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

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

010913:  GCMCA [Commanding General, 1 st 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 20011004 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).

The Applicant introduced no decisional issues for consideration by the Board. 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. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. 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. 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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