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USMC | DRB | 2003_Marine | MD03-01184
Original file (MD03-01184.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD03-01184

Applicant’s Request
The application for discharge review was received on 20030626. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record 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 20040423. 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:

“My discharge was improper because I was a good Marine; I believe that the truth would have eventually been discovered that I never used drugs but due to the fact that I was being punished (made to do strenuous work). I chose to take a discharge less favorable than I deserved.

 1. My discharge was based solely on drug-related conduct, and so warrants an upgrade to honorable. [A85.02]
 (I was presumed to he guilty by my command; but I never used drugs while I was
 enlisted )

2. My discharge was based solely on drug use or possession, and so warrants an upgrade to honorable. [A85.02]
 (I received a good conduct medal and was on my way to being discharged
 medically)
3.Aside from the drugs, my service record was satisfactory, and so warrants an upgrade to honorable. [A94.38]
 (The only problems I had were because of my back; I couldn’t do a PFT)
4. I was never involved in selling or trafficking of drugs, and so warrants an upgrade to honorable. [A94.38]
 (I was in no way involved with any drugs)
5. My undesirable discharge is no longer required today for the same conduct, and so warrants an upgrade to honorable. [A91.02]
 (Many Marines were given general discharges while only I was given an OTH)
6. Today, under current standards, I would not receive a less than honorable discharge, and so warrants an upgrade to honorable.
 (I would not have been treated like a criminal)
7. I received awards and decorations, and so warrants an upgrade to honorable. [A92.04]
(I was a good Marine; recipient of a good conduct award and others)
8. I received letters of commendation, and so warrants an upgrade to honorable. [A92.06]
 (I had no problems except for this one incident hanging over me)
9. I was so close to finishing my tour that it was unfair to give me a bad discharge, and so warrants an upgrade to honorable. [A92.28]
 (I was less than 3 months away from having a good discharge)

 10. I have been a good citizen since discharge, and so warrants an upgrade to honorable. [A92.22]
 (I have not been in any trouble since being released from the military; I am presently attending school for networking)

11. I was being considered for a physical disability discharge and was unfairly denied one, and so warrants an upgrade to honorable. [A99.14]
(I currently still suffer from service related problems with my entire back)

12. I should have been given a medical discharge because I never was medically qualified to serve, and so warrants an upgrade to honorable.
(I should have been discharged instead of being punished for something I did not do!)”

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)                971017 - 971027  COG

 Period of Service Under Review :
Date of Enlistment: 971028               Date of Discharge: 010622

 Length of Service (years, months, days):

         Active: 03 07 25
         Inactive: None

 Age at Entry: 17 (Parental consent)                       Years Contracted: 4

Education Level: 12                        AFQT: 68

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                          Conduct: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, GCM, LA

 Days of Unauthorized Absence: None

*No Marks Found in the service record

 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 :

971016:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
990901:  Counseled for deficiencies in performance and conduct. [Failure to be at place of duty and to follow direct orders of a NCO.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
001213:  Summary court-martial.
 Violation of UCMJ, Article 117: Provoking speeches and gestures.
 Finding: Guilty.
Sentence: Restriction for 15 days.
010312: CA approved sentence.
010126:  NAVDRUGLAB [Jacksonville, FL], reported Applicant’s urine sample, received 010122, tested positive for THC.
010404:  Counseled regarding deficiencies, specifically, the illegal use of marijuana. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.
010502:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis.
010503:  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.
010619:  SJA review determined the case sufficient in law and fact.

010619:  GCMCA [Commander, MFR] 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 20010622 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 1-9. 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 evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
Issue 10. 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.

Issues 11 and 12. Discharge for misconduct takes precedence over separation for other reasons, to include separation for medical reasons. Relief denied.

 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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