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USMC | DRB | 2003_Marine | MD03-00940
Original file (MD03-00940.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD03-00940

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 believe my discharge was inequitable because it was based on one isolated incident in 16 months of service with no other adverse action. I was given a “good conduct” award on 96-08-19 which is just 4 months before being discharged. The issue I have with the discharge is that it has served as an additional punishment in my civilian life. I fully accept that as a marine I failed my duties. I regret that every day of my life. I am trying to move on in my civilian life by getting my college degrees (both my bachelor and then a Law Degree). But I believe my discharge is going to prevent me from getting into Law School and there by hindering my ability to pursue happiness. The mistake I made as a youth at 19 years of age should not be a brand that I must endure my whole life is it? Please consider this request of mine. Don’t prevent me from obtaining success in the civilian world because I failed in the military. I am not doing this to gain access to VA benefits. I am only trying to start a new life from a clean slate. Please consider my request with the upmost sympathy.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                950504 - 950724  COG

 Period of Service Under Review :
Date of Enlistment: 950725               Date of Discharge: 961216

 Length of Service (years, months, days):

         Active: 01 04 21
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 80

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (5)                       Conduct: 3.6 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Rifle Marksman

 Days of Unauthorized Absence: 61

 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 :

950502:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

960523:  NAVDRUGLAB [SAN DIEGO,CA] reported Applicant’s urine sample, received 960517, tested positive for [THC].

 960625:  Declared a deserter.
960807:  NAVDRUGLAB [SAN DIEGO,CA] reported Applicant’s urine sample, received 960802, tested positive for [THC].
960819:  NJP for violation of UCMJ, Article 86: Did on or about 0800, 960525 without authority absent himself from his unit to wit: Beach and Terminal Operations Company located at Camp Pendleton, CA and did remain so absent until he surrendered on or about 1215, 960726 (61 days/S); violation of UCMJ, Article 112a: Did at BTO Co, 1 st LSB, 1 ST FSSG, or in the surrounding community, on or about 960513, wrongfully use marijuana (THC), a controlled substance.
 Awarded forfeiture of $437.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-1. Not appealed.
960827:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, Applicant notified that he is not eligible for treatment from a Veteran’s Administration Medical Facility in conjunction with discharge.
960909:  Applicant acknowledged that he will not receive VA treatment in conjunction with discharge.

960926:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
960926:  Applicant advised of his rights and having elected not to consult 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.

961017:  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 non-judicial punishment, which evidenced your illegal usage of drugs.

961029:  SJA review determined the case sufficient in law and fact.

961031:  GCMCA [Commanding General] 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 19961216 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 18 Aug 95 to 30 Jan 97.

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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