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USMC | DRB | 2003_Marine | MD03-01487
Original file (MD03-01487.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD03-01487

Applicant’s Request
The application for discharge review was received on 20030915. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions and the reason for the discharge be changed to convenience of the government. The Applicant requests a documentary record review. The Applicant listed a civilian counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040608. 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 narrative reason 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. Dear DRB: The following issues are the reasons I believe my discharge should be upgraded to Honorable. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service a less than honorable does not apply to my case because of the evidence I am submitting.

 •        Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge
 •        Received good conduct medal 20011207
 •        I was so close to finishing my tour that it was unfair to give me a bad discharge
•        I had been a good citizen since discharge
 •        The punishment I got at discharge was too harsh-for something I did not commit
•        Letter from employer: J_ S_
•        Letter from spouse: J_ M_
•        Birth Certificate daughter: D_ M”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Daughter’s birth certificate
Letter from Applicant’s wife
 Employment reference letter

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: None
Period of Service Under Review :
Date of Enlistment: 990406               Date of Discharge: 020301

 Length of Service (years, months, days):
         Active: 02 10 26
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 42
Highest Rank: LCpl
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (8)                       Conduct: 3.7 (8)
Military Decorations: None

 Unit/Campaign/Service Awards: SSDR
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 :

990331:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
991226:  NJP for violation of UCMJ, Article 92: Consumed alcohol while underage.
 Awarded forfeiture of $251.00, restriction for 14 days (suspended for 3 months). Not appealed.
000731:  NJP for violation of UCMJ, Article 128: Assaulted LCpl K_; violation of UCMJ, Article 81: Conspired with PFC N_ to teach LCpl K_ a lesson; and violation of UCMJ, Article 117: Used reproachful words toward LCpl K_.
 Awarded forfeiture of $563.00 for 2 months, restriction and extra duty for 45 days; reduction to PFC. Not appealed.
000804:  Counseled for deficiencies in performance and conduct. [Misconduct for which you received NJP.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010919:  Applicant made voluntary statement concerning his illegal use of drugs.
011207:  NJP for violation of UCMJ, Article 112a: Wrongfully use drugs.
 Awarded forfeiture of $584.00 for 2 months, restriction and extra duty for 60 days (one months forfeiture and 35 days restriction suspended for 6 months); reduction to PFC. Not appealed.
020116:  SACO/DACO evaluation: no diagnosis.
020125:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by admitted use of marijuana supported by a voluntary statement to CID.
020125:  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.
020214:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was Applicant’s admitted use of marijuana.
020225:  SJA review determined the case sufficient in law and fact.

 020227:  GCMCA [CG, MCB Hawaii] 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 20020301 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. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative 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 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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