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USMC | DRB | 2003_Marine | MD03-01379
Original file (MD03-01379.rtf) Auto-classification: Denied


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

, ex-Pvt, USMC
Docket No. MD03-01379

Applicant’s Request
The application for discharge review was received on 20030814. 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 review. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D. C. area. The Applicant did not respond.

Decision

A documentary discharge 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 of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

 Applicant’s issues, as stated on the application:

 1. “ MY DISCHARGE IS IMPROPER BECAUSE NO MEDICAL / SUBSTANCE ABUSE TREATMENT WAS PROVIDED TO SERVICE MEMBER ON 870302 FIRST NJP -WRONGFUL USE OF MARIJUNA. THE MARINE CORP FAILED TO PROVIDED PROPER COUNSELING AND TREATMENT. THIS CAUSED THE NEXT THREE MISCONDUCT NJPS 880825 FAILURE TO PAY JUST DEBT, UTTERED 10 BAD CHECKS TOTALLING 890.00, AND UA /8 DAYS, 881208 MAKING FALSE CLAIM, 890216 WRONGFUL USE OF COCAINE. THESE ARE ALL SIGNS OF A DRUG ADDICTION PROBLEM. SERVICE MEMBER WAS ONLY PROVIDED A SUBSTANCE ABUSE PROGRAM AS A CONDITION OF THE OTH DISCHARGE. IF GIVEN AN OPPERTUNITY FOR TREATMENT, I WOULD HAVE BEEN ABLE TO BETTER DEAL WITH THE PROBLEM AT HAND. I AM RESPECTFULY REQUESTING AN UPGRADE TO GENERAL UNDER HONARABLE CONDITIONS.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from R_ S_
Workers’ Compensation Board ID and badge copy
Newspaper article

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                860225 - 861103  COG

 Period of Service Under Review :
Date of Enlistment: 861104               Date of Discharge: 890831

 Length of Service (years, months, days):

         Active: 02 09 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 39

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (8)                       Conduct: 3.3 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 8

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

 Chronological Listing of Significant Service Events :
860224:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
870302:  NJP for violation of UCMJ, Article 112a: Wrongfully use marijuana.
 Awarded forfeiture of $250.00 per month for 2 months, restriction and extra duties for 30 days. Not appealed.
870507:  Counseled regarding deficiencies, specifically, the use of a controlled substance and violating the UCMJ. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.
880725:  Counseled for deficiencies in performance and conduct. [Late to work or place of duty on several occasions; with poor attitude and unacceptable conduct.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880819:  Counseled for deficiencies in performance and conduct. [Frequent involvement with military authorities.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
880829:  NJP for violation of UCMJ, Article 134: Dishonorably fail to pay debt to Harris Originals for $630.00; violation of the UCMJ, Article 123a (2 specs).
 Specification 1: On 880510, wrote two checks in the amount of $250.00 each, without sufficient funds.
Specification 2: From 880804 to 880617, wrote seven checks for $50.00 each and one check for $40.00 without sufficient funds.
Violation of UCMJ, Article 86: UA from 0730, 880804 to 1500, 880812.
Awarded reduction to E-2 (suspended for 6 months). Not appealed.
881208:  Vacate suspended reduction from NJP dated 880829.

 881208:  NJP for violation of UCMJ, Article 132: False claim for advanced BAQ/VHA on 881027.
 Awarded forfeiture of $176.00 (suspended for 2 months). Not appealed.
890216:  NJP for violation of UCMJ, Article 112a: Wrongfully use cocaine.
 Awarded forfeiture of $349.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-1. Not appealed.
890504:  Applicant requested VA treatment in conjunction with discharge.

 890505:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and due to a pattern of misconduct as evidenced by four nonjudicial punishments.
890505:  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.
890505:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and due to a pattern of misconduct. The factual basis for this recommendation was the Applicant’s four nonjudicial punishments.

890525:  SJA review determined the case sufficient in law and fact.

890525:  GCMCA [CG, 1 st FSSG] 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 19890831 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 Board found no indication in the record that he required treatment for drug dependence after his first NJP for illegal drug use. 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 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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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