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NAVY | DRB | 2004 Marine | MD04-00039
Original file (MD04-00039.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00039

Applicant’s Request
The application for discharge review was received on 20031001. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable. 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 20040617. 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. Five years ago while I was stationed in Pensacola, FL. for aircraft airframe mechanic, waiting for my class to start, I made the worst decision of my life. Another marine brought a lot of hits of acid {LSD} on base, and sold them to enlisted navy & marines. Needless to say I was one of them. My career was on track, with already on the job training first then school. I had never been in trouble before, nor have I been in any since. Unfortunately our CO at the time was known for putting marines out of the service. To my understanding the few marines involved were the only ones discharged with 2 months in the brig before being released. One decision and two hours later my life had dramatically changed forever. I’m hoping to have a chance at upgrading my discharge to general/under honorable conditions.
Thank you for your consideration,
E_ M. B_

P.S. Our state representative Harry Kennedy offered to write a letter if that will help.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Applicant’s Ltr dtd 6 Nov 2003
Character reference dtd 29 Oct 2003
Character reference dtd 6 Nov 2003
Character reference dtd 15 Oct 2003
Criminal records check dtd 11 Nov 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                971106 - 980209  COG

 Period of Service Under Review :
Date of Enlistment: 980210               Date of Discharge: 981207

 Length of Service (years, months, days):

         Active: 00 09 28
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 35

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (1)                       Conduct: 4.2 (1)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

971104:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

980916:  NAVDRUGLAB [GREATLAKES], reported Applicant’s urine sample, received 980824, tested positive for [LSD].

980917:  Counseled regarding deficiencies, specifically, illegal drug involvement. [You were in violation of Article 112a, by admitting the use of marijuana on two separate occasions.]

980917:  Counseled for deficiencies in performance and conduct. [You were in violation of Article 134 on 980814 by wrongfully writing disloyal statements to the Barracks duty logbook.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980923:  NJP for violations of UCMJ, Article 112 (1 specs):
 Specification 1: On or about 980911, drunk on duty.
Article 112a (3 specs):
Specification 1: On or about 980718 Wrongfully use marijuana.
Specification 2: On or about 980725 Wrongfully use marijuana
Specification 3: On or about 980814 Wrongfully use lysergic acid diethylamide.
Article 134 (1 spec):
Specification 1: On or about 980814 write in Bks H logbook, to wit: disloyal statements.
Awarded forfeiture of $463.00 per month for 2 months, restriction and extra duties for 60 days, reduced to E-1. Not appealed.
980925:  Medical evaluation for drug abuse found the Applicant to be neither a drug abuser nor drug dependant.
9810XX:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by nonjudicial punishment. [date unreadable]
9810XX:  Applicant advised of rights and having elected not to consult with counsel elected to waive all rights. [date unreadable]

981021:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was the Applicant’s admission of drug use.

XXXXXX:  SJA review determined the case sufficient in law and fact. [undated]

981123:  GCMCA [CO, MCABEA] 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 19981207 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.
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 three specifications of illegal drug use, thus substantiating the misconduct for which he was separated. 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.

The Applicant claims that, “I had never been in any trouble before, nor have I been in any since.” However, the record shows that the Applicant required a waiver for the theft of a car stereo at age sixteen. Further, 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 sufficient documentation for the Board to consider. Therefore, no relief is appropriate.

An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by nonjudicial punishment for five violations of the UCMJ, to include violations of Articles 112, 112a and 134. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted

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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