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USMC | DRB | 2003_Marine | MD03-00739
Original file (MD03-00739.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD03-00739

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 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 20040224. 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. “I feel that my discharge was unfair because after I was court-martialed, I was not supposed to be discharged. I was court-martialed in Nov. of 2000. As a result of my bad judgement I was sentenced to 45 days restriction, reduction in rank from Cpl to LPL, and loss of wages. I finished my restriction time in late December 2000, and was told that it was all over. I went on with my life giving 110% to all of my duties. During my ordeal I was never ordered to a Legal Platoon or given unfair duties. Everyone in my squadron backed me up because I was a hard worker, and a good Marine. I made a mistake, I learned from it, and it never affected my quality of work. We had a change of Command in our squadron during this. My old Commanding Officer had no intentions of discharging me. Our new Commanding Officer knew nothing about me. On the week of May 5-9, 2001 I was notified that I was being discharged on May 16 th , the following week. I would have liked to finish my enlistment and work my way back up to Cpl or possibly higher. If my country were to ever need my services again, I will be proud to provide them.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter of Recommendation dated May 16, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                981110 - 990103  COG

 Period of Service Under Review :
Date of Enlistment: 990104               Date of Discharge: 010516

 Length of Service (years, months, days):

         Active: 02 04 13
         Inactive: None

 Age at Entry: 18                          Years Contracted: 5

 Education Level: 12                        AFQT: 80

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (8)                       Conduct: 4.2 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Expert Badge

 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 :

981023:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
000501:  NAVDRUGLAB [San Diego, CA], reported Applicant’s urine sample, received 000425, tested positive for [Methamphetamine].

000510:  Counseled for deficiencies in performance and conduct. [Violation of Article 92 of the UCMJ: In that SNM on 000416 violated SqdnO 1013.3 by possessing and consuming alcoholic beverages while not of legal age to consume alcoholic beverages and by having guests under the age of 18 in the BEQ without parental supervision; Violation of Article 134: Conduct of a nature to bring discredit upon the U.S. Marine Corps.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001108:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 112a: Wrongful use of Methamphetamine on or about 000424.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $773.19, restriction and extra duty for 45 days, reduced to E-3.
         CA action 001109: Sentence approved and ordered executed.

010131:  SACC: Indicates Applicant does not meet the criteria for Drug/Alcohol Abuse (DSM IV V71.09). Recommended for administrative separation.

010201:  Medical evaluation for drug abuse found that the Applicant does not meet the criteria for Substance Abuse or Substance Dependency (DSM IV V71.09). Recommended for administrative separation.

010215:  Counseled for deficiencies in performance and conduct. [Underage drinking, disrespect to a NCO and having a tongue ring in your tongue. Specifically on 010203 while in the performance of his duty, you confronted a NCO by saying “I’m talking to you, you punk bitch” and “you so fucking stupid.” During this altercation it was apparent you were under the influence of alcohol and wearing a tongue ring.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010301:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
010307:  Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

010312:  Applicant refused medical treatment from VA hospital.

010315:  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 wrongful use of methamphetamine.

010419:  SJA review determined the case sufficient in law and fact.

010426:  GCMCA [Commanding General, 3d 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 20010516 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, 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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