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USMC | DRB | 2003_Marine | MD03-00737
Original file (MD03-00737.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD03-00737

Applicant’s Request
The application for discharge review was received on 20030319. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040205. 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. “The issue of getting an upgrade is solely for advancement in life, my grades are enclosed to prove that I am doing well & to encourage the Board to reconsider my discharge.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Honors Certificate for Fall 2002 from ITT Technical Institute

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                970327 - 970610  COG

 Period of Service Under Review :
Date of Enlistment: 970611               Date of Discharge: 990114

 Length of Service (years, months, days):

         Active: 01 07 04
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 75

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.5 (3)                       Conduct: 3.5 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 1

 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 :

970324:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
980511:  NJP for violation of UCMJ, Article 121: Stole 2 packs of Marlboros and a pack of Calvin Klein underwear from the MCX, CLNC.
 Awarded forfeiture of $242.00, restriction and extra duties for 14 days. Not appealed.
980602:  NJP for violation of UCMJ, Article 92: Consuming alcohol underage on 980528.
 Awarded forfeiture of $258.00 (suspended for 6 months), restriction and extra duties for 14 days. Not appealed.
980618:  Vacate suspended punishment from NJP of 980602.

 980618:  NJP for violation of UCMJ, Article 134: Broke restriction on 980613.
 Awarded forfeiture of $258.00 (suspended for 6 months), restriction and extra duties for 14 days. Not appealed.
980811:  Counseled for deficiencies in performance and conduct. [UA from ASAPP Course at Alcohol Treatment Facility.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980812:  Counseled for deficiencies in performance and conduct. [Violations of the UCMJ, Articles 86, 92, 121 and 134.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980813:  Counseled for deficiencies in performance and conduct. [Failure of ASAPP Course at Alcohol Treatment Facility due to falling asleep and failure to complete work assignments.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980814:  Vacate suspended punishment from NJP of 980618.

980814:  NJP for violation of UCMJ, Article 86: UA from HqCo, 8 th Marines from 0630-0700, 980806.
 Awarded forfeiture of $242.27 (suspended for 6 months), restriction and extra duties for 14 days (7 days suspended for 6 months). Not appealed.
980923:  NAVDRUGLAB [Jacksonville, FL], reported Applicant’s urine sample, received 980911, tested positive for cocaine.

980925:  DAAR. 980923. Cocaine, 4-7x per week. Result of unit sweep. CAAC determined not amenable to treatment. Medical officer and CO recommended separate from service not via VA hospital.

980930:  Vacate suspended punishment from NJP of 980814.
980930:  Medical evaluation for drug abuse found the Applicant to be drug and alcohol dependent. Recommend treatment at ARD Norfolk, VA.
         Applicant refused treatment.

981020:  Summary Court-Martial.
                  Violation of UCMJ, Article 92 (2 specs).
 Specification 1: Drove POV on base with no DOD sticker and no driving privilege.
                   Specification 2: Neglected to get a haircut after being ordered to.
                  Violation of UCMJ, Article 86 (2 specs).
 Specification 1: UA from 0630-0800, 980911.
                   Specification 2: UA from 0700, 981005 to 1340, 981006.
                  Violation of UCMJ, Article 112a: Wrongfully used cocaine.
                  Finding: Guilty of all charges and specifications.
                  Sentence: 28 days confinement, forfeiture of $617.00, reduction to E-1.
                  981028: CA action. Sentence approved and ordered executed.

 981104:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive urinalysis for cocaine on 980909.
981104:  Applicant advised of his rights and having consulted 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.

981123:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was a positive urinalysis for cocaine on 980909.

981230:  SJA review determined the case sufficient in law and fact.

990105:  GCMCA [CG, 2d MARDIV] 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 19990114 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 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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