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USMC | DRB | 2003_Marine | MD03-00206
Original file (MD03-00206.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD03-00206

Applicant’s Request
The application for discharge review, received 20021113, 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 20031010. 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 stated

Applicant’s issues, as stated on the application:

 1. “My name is C_ W_, and I am requesting for my other than honorable discharge to be upgraded to a honorable if possible. In July of 1995, I joined the Marine Corps after graduating from high school. I graduated from boot camp as a private first class and received honors for having the highest physical fitness test in my company. From 1997 to 1999, I was a member of the all-marine boxing team. In July of 1999, I received a other than honorable discharge for marijuana use. Before entering the Marine Corps I had never used any drugs, and since that time I haven’t used any drugs. I have really realized the importance of the mistake I have made and with your help I can possibly correct that mistake. I know the marine corps has a 0% tolerance toward using drugs, but I can honestly say I made a mistake not understanding the effect it would have on the rest of my life. Since being discharged it has really been hard to find a stable job without having to answer the question of having been in the military. When I write ”OTHER THAN HONORABLE” as a discharge employers look at me like I’m a criminal. I’m not a criminal, I was just a young man who made a critical mistake. At the time of me using marijuana, I was involved with the wrong type of people. Those people haven’t been in my life since then. If there is anything extra I will need to do to correct this mistake, I will gladly do it. I want to thank you for taking the time to review my request, and if you have any more questions, you are free to ask.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                950712 - 950725  COG

 Period of Service Under Review :
Date of Enlistment: 950726               Date of Discharge: 990725

 Length of Service (years, months, days):

         Active: 04 00 00
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 42

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (7)                       Conduct: 4.3 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksmanship 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 :

950705:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

961119:  Counseled for deficiencies in performance and conduct. [Disrespect towards a Non-Commissioned Officer.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
961220:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer and disorderly conduct, drunkenness; violation of UCMJ, Article 134: Did on or about 961214 at approximately 0300 disobey a lawful order from his command SgtMaj to return to his designated room and sleep off his drunkenness. SNM continued to display disorderly conduct and was drunk aboard Kadena/AFB, Okinawa, Japan during squadron deployment.
 Awarded reduction to E-2, restriction and extra duties for 30 days, to run concurrently. 30 days restriction and extra duty deferred until 960116, at which time, unless sooner vacated, will be remitted without further action. Not appealed.
981102:  NAVDRUGLAB [Jacksonville, FL], reported Applicant’s urine sample, received 981021, tested positive for [THC].

981114:  Counseled concerning my illegal drug involvement specifically, testing positive for THC identified through urinalysis testing, Naval Drug Lab Jacksonville FL. Lab Acc No 9810964062. Sources of assistance identified. Disciplinary and administrative discharge warning issued.

981204:  SACC evaluation determined that the Applicant did not meet the criteria DSM IV criteria for Cannabis/Alcohol abuse or dependence.

990630:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 112a (2 Specifications),
         Specification 1: SNM wrongfully used marijuana between on or about 980916 to 981015; Specification 2: SNM wrongfully used marijuana between on or about 981106 to 981108.
         Finding: to Charge I and the specifications 1 and 2 thereunder, guilty.
         Sentence: Reduced to E-1, restricted to the limits of place of mess, billeting, duty and worship and most direct route to and from without suspension from duty for 26 days.
         CA action 990630: Sentence approved and ordered executed.
990716:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Naval Drug Laboratory, Jacksonville, Florida, message R 022008Z of November 1998 and Criminal Investigation Division report of 23 February 1999.
990716:  Applicant advised of his rights and having elected not to consult 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.

990716:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was your wrongful use of marijuana as evidenced by Naval Drug Laboratory, Jacksonville, Florida, message R 022008Z of November 1998 and Criminal Investigation Division report of 23 February 1999.

990721:  SJA review determined the case sufficient in law and fact.

990721:  GCMCA [Commander, 2d 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 19990725 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. 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. 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, to enhance employment opportunities, or for 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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