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USMC | DRB | 2003_Marine | MD03-00569
Original file (MD03-00569.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD03-00569

Applicant’s Request
The application for discharge review was received on 20030212. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031229. 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

 No issues were submitted by the Applicant.

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

 “1. Equity regarding the character of discharge.

2. Based on the merits in this case, it is respectively requested that the Board take jurisdiction on this case and review all pertinent evidence submitted in this case to render a fair and equitable decision. Certainly, we request that where reasonable doubt should arise with respect to the Applicant that any and all doubt be resolved in favor of the Applicant. Also, it is very important to strongly consider the impetuosity of his youth.

(These issues do not supersede any previous issues).”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Department of Veterans Affairs letter
Pay statement
Letter of recommendation from J_ C. A_
Letter from Applicant to Veterans Service Center Manager, St. Louis, MO
Letter of recommendation from D_ A_
Letter of recommendation from Applicant’s father

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                980730 - 980810  COG

 Period of Service Under Review :
Date of Enlistment: 980811               Date of Discharge: 010629

 Length of Service (years, months, days):

         Active: 02 10 19
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 10                        AFQT: 55

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.4 (7)                       Conduct: 3.1 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

980728:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
990312:  Counseled regarding deficiencies. Failure to comply with the UCMJ. Apprehended on 990305 by Baltimore Police for trying to gain access with a false ID into a drinking establishment that requires you to be of legal age. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.
990609:  NJP for violation of UCMJ, Article 86: Failed to go to PT formation at 0530, 990526.
 Awarded restriction and extra duties for 14 days. Not appealed.
990722:  Counseled regarding deficiencies. Removed from the armory on 990506 due to reliability, dependability, and integrity. Lack of maturity, judgment, and enthusiasm. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.
000310:  NJP for violation of UCMJ, Article 92: Consumed alcohol while under the legal drinking age on 000303; violation of UCMJ, Article 92: Disobeyed a written lawful order by failing to sign out in the liberty logbook while still going out on liberty in Kinville on 000303.
 Awarded forfeiture of $563.00 per month for 2 months (suspended for 6 months), restriction and extra duties for 45 days, reduction to PFC. Not appealed.
000619:  NJP for violation of UCMJ, Article 86: Failed to go to Battalion PT formation at 0530, 000616; violation of UCMJ, Article 90: Willfully disobeyed order from BN XO on 0005, 000616; violation of UCMJ, Article 92: Consumed alcohol while under the legal drinking age on 000615; violation of UCMJ, Article 92: Disobeyed a written lawful order by allowing LCpl G_ to check out his weapon without a valid NAVMC 10520 Card; violation of UCMJ, Article 112: Found unconscious and passed out drunk while assigned as the duty armorer on or about 2345, 000615.
 Awarded forfeiture of $502.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt. Not appealed.
000622:  Counseled regarding deficiencies, specifically, poor judgment which resulted in a loss of trust and confidence that Applicant can effectively perform as a Headquarters Battery Armorer. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.
000920:  NJP for violation of UCMJ, Article 92: On or about 2300, 000831, violated a lawful general order, to wit: MCO 1700.2D by underage drinking; violation of UCMJ, Article 111: On or about 2300, 000831 physically controlled a vehicle through the MCAGCC Main Gate with a BAC of .06.
 Awarded forfeiture of $234.00, restriction and extra duties for 14 days. Not appealed.
010117:  NJP for violation of UCMJ, Article 112a: wrongfully used a controlled substance, to wit: tested positive for methamphetamine, on an urine-analysis on 13 October 00.
 Awarded forfeiture of $500.00 per month for 2 months, restriction for 60 days. Not appealed.
010117:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by methamphetamine use and misconduct due to a pattern of misconduct.
010118:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

010119:  Admitted to inpatient drug/alcohol rehabilitation at Naval Hospital, CAMPEN, CA.

010209:  Discharged from inpatient rehabilitation and returned to full duty. Diagnosed with psychoactive substance dependence, alcohol and methamphetamines. Recommend administrative separation.
010213:  Applicant’s statement in rebuttal to separation submitted.

 010301:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was methamphetamine use.
010323:  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 and a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

010607:  SJA review determined the case sufficient in law and fact.

010607:  GCMCA [CG, 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 20010629 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).

 Issues 1 and 2. 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 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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