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USMC | DRB | 2003_Marine | MD03-00882
Original file (MD03-00882.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD03-00882

Applicant’s Request
The application for discharge review was received on 20030411. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region, a personal appearance discharge review before a traveling panel closest to [left blank] and a documentary record discharge review. The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040312. 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 Marine Corps gave me an honorable discharge – (I did my punishment this was my only incident in over 36 months)

2. They approved of my school and leaving giving me orders to go home – with an honorable discharge

 3. 10 days later they called my school in Washington State, making me return to base (Camp Lejeune) or be listed as a deserter –
4. I had no counsel, or recourse when I returned, my new paperwork was already completed-

5. I deserve an honorable discharge”

Additional issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars):

6. “Applicant indicated above requested the Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on Sep 17, 2003 and the following comments are hereby submitted:

We Concur with the Applicant’s contentions that his discharge should be upgraded.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrading to a General Discharge.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, dated November 17, 2002
Applicant’s DD Form 214 (2)
Separation/Travel pay certificate, dated May 7, 2002
Letter to Applicant from Commanding General, 2d Force Service Support Group, dated May 22, 2002
First Endorsement on Applicant’s terminal leave request, dated May 1, 2002
Travel voucher, dated May 14, 2002
Application for VA Education benefits, dated April 29, 2002
Letter to Applicant from Department of Veterans Affairs, dated May 21, 2002
Certificate from West Coast Training, Inc, dated June 3, 2002
Receipt for $300.00 from West Coast Training Inc., dated May 2, 2002
Receipt for $191.80 from Kalama River Inn, dated June 2, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                971223 - 980719  COG

 Period of Service Under Review :
Date of Enlistment: 980720               Date of Discharge: 020614

 Length of Service (years, months, days):

         Active: 03 10 25
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):*

 Proficiency: 4.5                           Conduct: 4.3

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, SSDR with Bronze Star, AFSM, AFEM, Letter of Appreciation, Certificate of Commendation, NDSM

 Days of Unauthorized Absence: None

*Extracted from Staff Judge Advocate’s memorandum, dated 020604.

 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 :

971222:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
020304:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 020226, tested positive for THC.

 020320:  NJP for violation of UCMJ, Article 112A:
 Specification: Wrongfully used marijuana.
Awarded forfeiture of $734.00 per month for 2 months, restriction and extra duties for 45 days, reduction to LCpl. Not appealed.
020325:  Applicant signed Statement of understanding of treatment for alcohol/substance dependence at a Veterans Administration Medical Center.

020411:  Substance Abuse Evaluation: Applicant found to be alcohol dependent and a cannabis abuser. Recommendations: Intensive outpatient treatment. Individual should be held accountable for actions. Weekly visits with Unit SACO until treatment. Per MCO P1000.10, the individual is non-deployable. Per MCO P1000.10, the individual is recommended to be processed for administrative separation due to illicit substance use.

020430:  Counseled for deficiencies in performance and conduct. [Illegal drug involvement (marijuana usage identified through urinalysis confirmed by Navy Drug Lab JAXFL msg R041935Z March 02).] Necessary corrective actions explained.
020430:  Applicant signed Statement of understanding of treatment for alcohol/substance dependence at a Veterans Administration Medical Center.

020506:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
020506:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020515:  Applicant refused treatment for alcohol dependency. [Extracted from Staff Judge Advocate’s memorandum, dated 020604.]

020521:  Commanding Officer recommended a suspended discharge for 12 months under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was respondent’s use of a controlled substance, i.e. marijuana as identified in NavDrugLab Msg, Jacksonville, FL 041935Z Mar 02.

020604:  SJA review determined the case sufficient in law and fact.

020604:  GCMCA [Commanding General, 2d Force Service Support Group ] 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 20020614 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 1-6. The documents provided by the Applicant in no manner establish that the Applicant was awarded an honorable discharge. 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. The Applicant waived his right to counsel when advised of his rights concerning his administrative separation. The discharge was proper and equitable. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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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