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USMC | DRB | 2003_Marine | MD03-00785
Original file (MD03-00785.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD03-00785

Applicant’s Request
The application for discharge review was received on 20030331. 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 20040401. 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 discharge from active duty was in no way inappropriate. I wholeheartedly regret my use of drugs and the resulting urinalysis failure, and I fully agree with the zero-tolerance drug policy. Since my discharge, I have not used any illegal substances or been in any trouble with the law whatsoever. The reason that I am requesting a discharge upgrade is to better my future career opportunities. With an honorable discharge I will be able to receive my GI Bill benefits and complete my college education. I’ve had three years to think about my mistakes, and I’ve realized they stemmed from childish irresponsibility, and lack of foresight. I feel that I have been able to leave these things behind me and adopt a more mature perspective on my life and future, a large part of which involves the completion of college. I am currently maintaining a 4.0 GPA while working and studying full time. Without the GI Bill, I will not be able to finance any schooling past next semester. I beg of you to not let my prior lapses in judgement continue to restrict my potential to finally make something of myself. Thank you for your time and consideration.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                960313 - 960722  COG

 Period of Service Under Review :
Date of Enlistment: 960723                        Date of Discharge: 990908

 Length of Service (years, months, days):

         Active: 03 01 16
         Inactive: None

 Age at Entry: 17 Parental Consent                Years Contracted: 4

 Education Level: 12                                 AFQT: 84

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (9)                       Conduct: 4.3 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: MM, LOA (2), NMCAM

 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 :

960310:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs. Enlisted with drug waiver.
990126:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 990115, tested positive for Lysergic Acid Diethylamide.

990203:  Counseled for deficiencies in performance and conduct. [Wrongful use of Lysergic and Diethylamide as identified by NavDrugLab San Diego message 262142Z Jan 99, Batch No. 3504/10, Lab Accession Number S9901134060 received on 990115.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990427:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 112A:
         Specification: Wrongfully used LSD.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $710.00, confinement for 30 days, reduction to Pvt.
         CA action 990427: Sentence approved and ordered executed.

990526:  Applicant refused medical officer evaluation for dependence.

990728:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
990729:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to make a statement and to obtain copies of the documents used to support the basis for the separation. Applicant’s statement contained in the service record.

990729:  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 LSD as evidenced by NAVDRUGLAB message 262142Z Jan 99.

990818:  SJA review determined the case sufficient in law and fact.

990818:  GCMCA [Commander, 1 st Marine Division (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 19990908 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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