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USMC | DRB | 2003_Marine | MD03-00292
Original file (MD03-00292.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD03-00292

Applicant’s Request
The application for discharge review, received 20021204, requested that the characterization of service on the discharge be changed to honorable or under honorable conditions (general) and that the narrative reason be changed to pattern of misconduct or secretarial authority. The Applicant requested a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the American Legion. The American Legion representative was not present for the hearing due to Hurricane Isabel. The Applicant elected to proceed without a representative.
Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 20030918. The Applicant was allowed ten business days after the hearing to submit additional supporting documents. 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 at the time of issue was discovered by the NDRB. The Board’s vote was unanimous that the character and narrative reason of the discharge shall not change. The discharge shall remain: A personal appearance discharge review was conducted in Washington, D.C. on XXXXXX. 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-Drug abuse ( administrative discharge board required but waived) or (with administrative discharge board ), authority: MARCORSEPMAN Par. 6210.5.

 UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

THIS IS THE CORRECT SHELL FOR DRUG ABUSE, EFFECTIVE 27 Jun 89 until 30 Jun 94.

The finding for Misconduct is effective 27 Jun 89 until 17 Aug 95, however, the Commandant of the Marine Corps issued an official list of the new DoD SPD codes and narrative reasons for separation on 940701.

SPD CODE                  NARRATIVE REASON FOR SEPARATION
 (SPD Codes are listed on page 1-55 of MCO P1900.16D, effective 27 Jun 89 until 1 Jul 94. The only change from MCO P1900.16C is: “administrative” vice “admin”)

 GKK1                       Misconduct-Drug abuse (with admin istrative discharge board)
 HKK1              Misconduct-Drug abuse (administrative discharge board
 required but waived)

Characterization of service is written “HONORABLE”, “UNDER HONORABLE CONDITIONS (GENERAL)” or “UNDER OTHER THAN HONORABLE CONDITIONS”(See page 1-33 of MCO P1900.16D, effective 27 Jun 89)

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as submitted

The Applicant stated that his performance while in the field and the fact that he completed three years and six months of his four year contract should mitigate his misconduct. He also stated his post-service conduct should mitigate his characterization of service.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from Andover Police Department, Chief of Police, dated December 4, 1997 (2 copies)
Character reference, dated December 10, 1997 (2 copies)
Certificate of completion, dated May 9, 2002
Letter from Applicant, dated September 3, 2002
Letter from Applicant’s sponsor in Alcoholics Anonymous, undated (2 copies)
Employment reference, dated September 2, 1999 (2 copies)
Character reference, dated December 4, 1997 (2 copies)
Letter from Applicant’s sister, dated September 15, 2003
 Letter from T_ S_, dated September 26, 2003
Letter from F_ D_, dated September 19, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                860407 - 860915  COG

 Period of Service Under Review :
Date of Enlistment: 860916               Date of Discharge: 900323

 Length of Service (years, months, days):

         Active: 03 06 08         Does not exclude lost time
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 50

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (13)                      Conduct: 3.4 (13)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, MM

 Days of Unauthorized Absence: 1

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

 Chronological Listing of Significant Service Events :

860403:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
870506:  NJP for violation of UCMJ, Article 92:
 Specification: Violated 12/14 Area Order P11100.2 paragraph 4001.3 by having in wall locker a ¾ empty bottle of Peppermint Schnapps.
Awarded forfeiture of $172.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
870527:  NJP for violation of UCMJ, Article 90:
 Specification: Disobeyed a lawful order by being out of uniform and unshaven, an order specifically typed on the restriction papers on 1325, 870517.
Violation of UCMJ, Article 134:
Specification: Broke restriction muster, by being at Engineer Bks and failed to sign in with the DNCO on 1300-1325, 870517.
Awarded forfeiture of $172.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture suspended for 1 month. Restriction and extra duty suspended for 6 months. Not appealed.
870624:  Counseled for deficiencies in performance and conduct. [Misconduct to date, which includes NJP dated 870506 and 870527.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
870715:  NJP for violation of UCMJ, Article 112A:
 Specification: Applicant was found positive for the use of amphetamines/methamphetamine as detected from a random urinalysis conducted on 870504.
Awarded forfeiture of $325.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt. Not appealed.
890314:  NJP for violation of UCMJ, Article 92:
 Specification: Disobey a lawful order from Cpl on 1800, 890125, to wit: by refusing to clean the shower area when told to do so.
Awarded forfeiture of $200.00 per month for 1 month, restriction and extra duties for 7 days. Not appealed.
890314:  Counseled for deficiencies in performance and conduct. [Use of illegal drugs, disobedience of lawful orders, frequent acts of misconduct as to bring discredit upon the unit and the Marine Corps.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
890331:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from appointed place of duty at 0531-0910, 890328.
Awarded forfeiture of $200.00 per month for 1 month, restriction for 14 days. Not appealed.
891005:  NJP for violation of UCMJ, Article 92:
 Specification: Disobey a lawful order to wit on 0001, 890918: failing to report from liberty at the prescribed time.
Awarded forfeiture of $391.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC. Forfeiture for 2 months suspended for 6 months. Not appealed.
891018:  Vacate forfeiture awarded at Commanding Officer’s NJP dated 891005.

891101:  Counseled for deficiencies in performance and conduct. [Frequent involvement with military authority and minor disciplinary infractions.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
891206:  Medical evaluation: Diagnoses: Axis I: Alcohol dependence, marijuana abuse by history, Axis II: Personality disorder analyzed as passive-aggressive and immature features. Fit for full duty.
891218:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Failure to go at the time prescribed to appointed place of duty on 891013, to wit: restriction muster.
         Charge II: violation of the UCMJ, Article 92:
         Specification: Violate a lawful general order on 891013, to wit: Par 3002.2 BO P50000.2H by wrongfully possessing alcohol in barracks.
         Charge III: violation of the UCMJ, Article 134:
         Specification: Break restriction on 891013.
         Finding: to Charge I, II and III and the specifications thereunder, guilty.
         Sentence: Forfeiture of $466.00, CHL for 1 month, reduced to Pvt.
         CA action 891225: Sentence approved and ordered executed except for that portion of the punishment adjudging forfeiture of $466.00 which is suspended for 6 months.

891218:  Applicant found fit for confinement. Applicant to confinement.

900111:  Applicant from confinement.

900123:  Counseled for deficiencies in performance and conduct. [Being processed for discharge due to pattern of misconduct.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900205:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse.

900206:  Supplemental Convening Authority’s Action: The sentence as suspended on 891225 vacated. Unexecuted portion of sentence of forfeiture of $466.00 pay per month for 1 month ordered executed. Unexecuted sentence remitted.
900206:  NJP for violation of UCMJ, Article 86:
 Specification: Failed to be at appointed place of duty on 0531, 900129.
Awarded forfeiture of $100.00 per month for 1 month, extra duties for 7 days. Not appealed.
900206:  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.

900206:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse. The factual basis for this recommendation was six nonjudicial punishments and one summary court-martial.

900226:  SJA review determined the case sufficient in law and fact.

900227:  GCMCA [Commanding General, 1 st Marine Division (Rein), FMF] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

920724:  NDRB documentary record review Docket Number MD91-00654 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900323 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 Applicant was also processed for separation for a pattern of misconduct based upon six nonjudicial punishments and one summary court-martial. His pattern of misconduct further warranted processing for separation under other than honorable conditions. The Board found that the separation authority’s decision to assign drug abuse as the narrative reason for separation was proper and equitable. 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 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 did not provide sufficient verifiable documentation of good character and conduct to mitigate his misconduct and illegal drug use while on active duty. Relief denied.








Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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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