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USMC | DRB | 2003_Marine | MD03-00406
Original file (MD03-00406.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD03-00406

Applicant’s Request
The application for discharge review was received on 20030109. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests 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 20031205. 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_ L. S_ [SSN deleted], I am 24 years old. I was discharged from the United States Marine Corps on June 16, 2000 with an Other Than Honorable Discharge, because of the results of a positive drug test. My testimony at my summary court martial states that I unknowingly did drugs due to the results of drinking too much. Before this incident happened I proudly served in the Marine Corps. As a Lance Corporal I ran & was in charge of Tango 5/11 supply shop. A position supposed to be held by a staff NCO. As a NONNCO, Tango’s 5/11 supply shop was always squared away, & it passed all of its inspections whether if it was by the Battery CO or whether it was from division itself. I C_ L. S_ [SSN deleted] was a proud Marine who verily rarely got into trouble. As a matter of fact twice for only minor situations. However as a marine my uniform was always squared away, all of my inspections I passed with flying colors. My PFT’s I passed with a first class score, the only thing I needed to work on was my Rifle qualification because I only could score marksman. When Tango 5/11 went on float Dec 98-June 99 I volunteered to go because I wanted to do more in the United States Marine Corps. When I joined the Marine Corps, I joined because I wanted to go to college after I got out. While serving in the United States Military I contributed for 12 months to the Montgomery GI Bill. I will start at the University of Missouri Kansas City on January 13, 2003, & I would like to use my GI Bill, but I can’t because of my OTH discharge. If I can get an Honorable Discharge then I can us my GI Bill to further my education & make something better out of my life. I am not a bad person just someone who got caught up in the wrong crowd. Anybody who knows me can tell you the same thing. I know changing my Other Than Honorable Discharge to an Honorable Discharge will be a difficult decision but I an willing to do anything to show you that I am an Honorable person and deserve to have an Honorable discharge.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant Marine Corps Photograph

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                960930 - 970729  COG

 Period of Service Under Review :
Date of Enlistment: 970730               Date of Discharge: 000616

 Length of Service (years, months, days):

         Active: 02 10 16
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 51

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (Unknown)                         Conduct: 4.5 (Unknown)
[Extracted from CO’s message dated 20 April 2000]

Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFEM

 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 :

960829:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
991110:  Counseled for deficiencies in performance and conduct. [On 28 October 99 you showed disrespect to 2 nd LT W_ in the battery fire direction center, by throwing up your hands and walking away while being counseled. When asked by 2 nd LT W_ if you had an attitude you replied with “Yes Sir I did.”] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000120:  NAVDRUGLAB [SAN DIEGO, CA], reported Applicant’s urine sample, received 000112, tested positive for phencyclidine.

000426:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 112a.
         Specification: On or about 10 Jan 2000 wrongfully used phencyclidine.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Confinement for 30 days, reduced to E-1.
         CA action 000501: Sentence approved and ordered executed.

000426:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
000426:  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.

000504:  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 positive urinalysis.

000524:  Applicant refused Medical Officer Evaluation.

000525:  SJA review determined the case sufficient in law and fact.

000530:  GCMCA [Commanding General, 1 st MARDIV (Rein)] 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 20000616 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. Separation under these conditions generally results in characterization of service under other than honorable conditions. 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. 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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