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USMC | DRB | 2003_Marine | MD03-00927
Original file (MD03-00927.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD03-00927

Applicant’s Request
The application for discharge review was received on 20030502. 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 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. “I M_ A_ C_ (Applicant) joined the USMC in Dec 97, I wanted to change my life around and set a good example for my son and others. Boot camp was a life changing experience. It took a lot of getting use to military life, I had doubts about my commitment early in my USMC career, on top of missing my fiancé and child and went UA for 29 days witch resulted in my receiving NJP, upon completion of school (MOS) I was stationed in Okinawa Japan for 1 year. My first 3 weeks took getting use to; I received a pg. 11 entry on 980923. After that infraction I was a model Marine, promoted twice, until my next infraction, personal problems at home resulted in my going U.A for 7 days. I went almost 2 years without no pg 11 or NJP’s. I don’t think I qualify for having a history of legal problems or substance abuse. I believe my last 6 months I was suffering from extreme depression that led to my separation from the military. Being in the Marines defiantly turned my life around. I just wish I had fought while I was in to receive a better discharge.
M_ C (Applicant) (social security number deleted)”

 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)                971210 - 980119  COG

 Period of Service Under Review :
Date of Enlistment: 980120               Date of Discharge: 001117

 Length of Service (years, months, days):

         Active: 02 09 29         Does not exclude lost time
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 10                        AFQT: 36

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (7)                       Conduct: 3.8 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 35

 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 :

971209:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
980618:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0500, 980518 to 0845, 980614 (26 days).
Awarded forfeiture of $463.00 per month for 2 months, restriction and extra duties for 45 days. Forfeiture for 1 month suspended for 4 months. Not appealed.
980923:  Counseled for deficiencies in performance and conduct. [Disrespectful conduct towards an NCO. Consuming alcohol while in a duty status.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000426:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Unauthorized absence from 0731, 000403 to 1500, 000411 (9 days).
Specification 2: Unauthorized absence from appointed place of duty on 0445, 000415.
Awarded forfeiture of $563.00 per month for 2 months, correctional custody for 30 days, reduction to PFC. Forfeiture for 1 month suspended for 3 months. Appealed 000428. Appeal denied 000519.
000719:  Counseled for deficiencies in performance and conduct. [My violation of Article 86 of the UCMJ that resulted in my Battalion level NJP on 000426.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000720:  Vacate suspended forfeiture awarded at CO’s NJP dated 000426.

000727:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 000719, tested positive for THC.

000818:  Counseled for deficiencies in performance and conduct. [My illegal drug involvement. THC usage identified through urinalysis confirmed by Navy Drug Lab JAXFL, msg 272004Z JUL 00.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000822:  Medical evaluation for drug abuse found the Applicant did not meet the Diagnostic and Statistical Manual of Mental Disorders criteria for drug abuse or dependence. However, any confirmed illegal drug use is a violation of the Marine Corps policy and requires that Applicant be processed for administrative separation.

000823:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from appointed place of duty between 0630 and 0830, 000804.
Violation of UCMJ, Article 91:
Specification: Insubordinate in conduct towards a NCO on 0915, 000707.
Violation of UCMJ, Article 92:
Specification: Fail to obey a lawful order given by an NCO on 0915, 000707.
Violation of UCMJ, Article 112A:
Specification: Wrongfully use a controlled substance, to wit: THC on 000714.
Violation of UCMJ, Article 117:
Specification: Make provoking obscene gestures towards an NCO on 0915, 000707.
Awarded forfeiture of $200.00 per month for 2 months, restriction for 60 days, reduction to Pvt. Forfeiture for 2 months suspended for 3 months. Not appealed.
000828:  Counseled for deficiencies in performance and conduct. [My violation of Articles 86, 91, 92, 112A and 117 of the UCMJ that resulted in my Battalion level NJP on 000823.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000907:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
000908:  Applicant advised of 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.

000909:  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 conviction by nonjudicial punishment of Article 112a, UCMJ, use of marijuana.

001109:  SJA review determined the case sufficient in law and fact.

001109:  GCMCA [Commanding General, Marine Corps Base, Quantico, VA] 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 20001117 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. The discharge was proper and equitable. 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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