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USMC | DRB | 2003_Marine | MD03-01312
Original file (MD03-01312.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD04-01312

Applicant’s Request
The application for discharge review was received on 20030801. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to Service Disability. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040526. 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 and the reason for 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:

“Ex. 1) My Discharge was inequitable because it was based on one Isolated Incident in 39 months of service with no other adverse action.

Ex. 2) My Discharge prevents me from receiving the benefits that are connected to my Service Connected Disability

Ex. 3) My service Connected Injury was approved & granted before I got into trouble, the Article 15 took prescedense

Ex. 4) Above all, My Discharge does not reflect my character. While Still on active Duty, I received my Good Conduct Medal. And Since I have been discharged, there has not been one incident, where my Character was questionable”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                940712 - 940905  COG

 Period of Service Under Review :
Date of Enlistment: 940906               Date of Discharge: 971205

 Length of Service (years, months, days):

         Active: 03 03 00
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 77

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (10)                      Conduct: 4.0 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM, Letter of Appreciation

 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 :

940709:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
970716:  Applicant referred to Physical Evaluation Board with a diagnosis of Bilateral retropatellar pain syndrome.
970818:  Central Physical Evaluation Board: On 970811 Applicant was found unfit to remain on active duty because of a physical disability. Preliminary Findings: Bilateral retropatellar pain syndrome.
970819:  Applicant accepted medical board findings of unfit for duty rated at 0%.

 970924:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, tested positive for amphetamine and methamphetamine. [Extracted from Commanding Officers’ NJP dated 971002 and counseling entry dated 971006.]

 971002:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0600, 970912 to 0100, 970913
Violation of UCMJ, Article 112A:
Specification: Wrongfully use amphetamine and methamphetamine.
Awarded forfeiture of $575.00 per month for 2 months, restriction for 45 days, reduction to LCpl. Not appealed.
971006:  Counseled for deficiencies in performance and conduct. [Illegal drug involvement.] Necessary corrective actions explained, sources of assistance provided.
971009:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

971031:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
971031:  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.

971031:  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 confirmed drug use of methamphetamines.

971125:  SJA review determined the case sufficient in law and fact.

971201:  GCMCA [Commanding General, 1 st Marine Division (Rein), Camp Pendleton, CA] 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 19971205 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. The Applicant states his discharge was based on one isolated incident in “39 months.” Civilian authorities treat some offenses with leniency because they are a first time incident on an otherwise clear record. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

Issue 2. The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. 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.

Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief denied.

Issue 3. The Applicant was referred to the Physical Evaluation Board on 980716 and found unfit for further duty on 970819. The Applicant’s nonjudicial punishment for violations of the UCMJ took place on 971002. However, both the Marine Corps Separation and Retirement Manual and the Disability Evaluation Manual states that disciplinary separation involving a punitive or Under Other Than Honorable discharge supersede disability separations. Relief denied.

Issue 4. There is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for sailors who abuse illegal drugs. 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.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no such errors after a review of Applicant’s case. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle. As of this time, the Applicant has not provided any documentation for the Board to consider. Therefore, no relief is appropriate.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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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