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USMC | DRB | 2003_Marine | MD03-00243
Original file (MD03-00243.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD03-00243

Applicant’s Request
The application for discharge review, received 20021121, 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 Other Than Honorable (0TH) Discharge was inequitable and should be changed to an Honorable Discharge because it was based on a single isolated incident in 59 months of dedicated service with no other adverse action.
Non-Judicial Punishment:
 My Non-Judicial Punishment (NJP) was carried out in March 2001 and my Commanding Officer of VMFA-134, Lt. Cot. M_, gave me the minimum amount of penalties. I had a clean record prior to my NJP, never even having a negative page eleven entry in my Service Record Book (SRB). Not only was my 0TH Discharge inequitable, but the process was unreasonably long and painstaking.

 Administrative Separation Board:
 After my NJP, I requested an Administrative Separation Board and did not receive one until eight months afterward in mid-November 2001. Throughout those eight months, because of lack of skilled manpower, I was constantly transferred from working in the Tool Room and Corrosion Control while simultaneously being called upon by my superiors to work on aircrafts. Explicitly, I was entrusted by Maintenance Control to manage the Tool Room on my own during the night shift because of my experience and dependability. I also helped my former squadron VMFA-134 pass a Commanding Generals Inspection (CGI) by making sure the Tool Program and the Tool Room were in proper working order according to specific guidelines. These actions are significant because they demonstrate my continual drive to be productive and proficient in the Marine Corps despite my complicated situation. During my Administrative Separation Board hearing in November 2001, there were numerous voluntary Marines who spoke on my behalf. These Marines included: Master Gunnery Sergeant O_ (formerly the Acting Sergeant Major), Gunnery Sergeant P_ (my former Division Chief prior to my NJP), Staff Sergeant K_, Staff Sergeant D_, Sergeant H_, and Staff Sergeant L_ (formerly Sergeant L_). There were two other Marines, Sergeant B_ and Sergeant R_, but they were not allowed to testify in front of the Board because the Board felt there was sufficient testimonies. Despite the evident show of support from my superiors and the fact that the remainder of my 5-year enlistment was only five months away (specifically April 8, 2002), the Board maintained the original decision for 0TH Discharge and Administrative Separation. The Board did not allow me to serve the rest of my obligated service.

 Official Release:
 I received my check-out sheet to separate from the Marine Corps in March 2002, four months after my Administrative Separation Board hearing. I was officially released of my contract on March 13, 2002, which was merely 25 days away from my original date of separation.
As discouraging as it was, being unable to make plans for my life after the Marine Corps and living in uncertainty for a total of twelve months, I still maintained a professional attitude and performed all my duties as a Marine (i.e. running a PFT, completing MCIs, participating in funeral details, and volunteering for Toys-for-Tots).

Current Situation:
 My inequitable OTH Discharge has barred me from many well-deserved benefits as a military veteran who has served his country for 59 months. I am currently a full-time student at Sierra Academy of Aeronautics working to receive my Airframe and Power Plants (A&P) License to advance my aviation career which began in the Marine Corps. My 0TH Discharge prevents me from using the money I invested into the Montgomery G.I. Bill which would undoubtedly assist me with my current tuition costs.
The OTH Discharge has also reduced my chances of starting a career in an already competitive job market in my permanent place of residence, California’s San Francisco Bay Area. In addition, the OTH Discharge has disqualified me from much-needed unemployment benefits, all federal employment, in particularly aviation employment, the majority of which are governed by the FAA, and numerous other hard-earned military veteran benefits.
                  Admin    Officially      
Begin Boot                Separation       released         Original
 Camp     NJP      Board    with OTH         EAS

 ⇓          ------------------------------------------------------------------------------------------------------- ◊

Apr      Mar      Nov      Mar      Apr      Present
 1997     2001     2001     2002     2002
Figure 1: Timeline of Events”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1 and 4) (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                970227 - 970407  COG

 Period of Service Under Review :
Date of Enlistment: 970408               Date of Discharge: 020313

 Length of Service (years, months, days):

         Active: 04 11 06
         Inactive: None

 Age at Entry: 20                          Years Contracted: 5

 Education Level: 12                        AFQT: 57

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (12)                      Conduct: 4.5 (12)

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, SSDR, NUC

 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 :

010309:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010305, tested positive for THC.

010315:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

010407:  NJP for violation of UCMJ, Article 112A:
 Specification: Wrongful use or possession of controlled substance on 010305.
Awarded reduction to LCpl. Not appealed.
010412:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
010424:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
011130:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

020115:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was violation of Article 112A of the UCMJ; positive urinalysis for THC, as evidenced by NAVDRUGLAB SAN DIEGO CA message 091935Z Mar 01.

020228:  SJA review determined the case sufficient in law and fact.

020228:  GCMCA [Commanding General, 4 th 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 20020313 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. Despite the positive aspects of the Applicant’s service both prior to and after his nonjudicial punishment for illegal use of drugs, drug abuse warranted processing for separation, normally under other than honorable conditions. The fact that the Applicant was not discharged until ten months after he was notified that he was pending administrative separation is not a basis for upgrading the discharge. Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

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. 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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