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NAVY | DRB | 2004 Marine | MD04-00044
Original file (MD04-00044.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00044

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 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 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. “Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a Other than-Honorable Discharge.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Character Reference dtd 030916
Character Reference dtd 030808
Character Reference dtd 030805
Character Reference dtd 030806
Character Reference dtd 030916
Character Reference dtd 030811
Certificate of Graduation dtd 011209
Certificate of Completion dtd 030101

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                980226 - 980427  COG

 Period of Service Under Review :
Date of Enlistment: 980428               Date of Discharge: 000915

 Length of Service (years, months, days):

         Active: 02 04 18
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 57

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (6)                       Conduct: 3.8 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, HSM, 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 :

980210:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
000309:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: On or about 000227 fail to report for Company ADNCO duties
Specification 2: On or about 000229 fail to report for his HMMV watch from 0200-0400 at Charlie Co
Awarded forfeiture of $273.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
000421:  Counseled for deficiencies in performance and conduct. [Failure to comply with UCMJ, SNM is pending a court martial for drug use, pending charges for drug possession in a civilian court, has had one NJP for 2 counts of UA and was involved in no less than 6 incidents.] on liberty during the last WestPac.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 000511:  NJP for violation of UCMJ, Article 92 (1 spec):
 Specification 1: On or about 000407 fail to obey an order to field day his room prior to going on liberty.
Article 112a (1 spec):
Specification 1: On or about 990414 wrongfully use cocaine.
Award: Reduction to E-2, forf 563.00 per mo for 2 mos and 45 das restr and extra duties. Forf sups for 6 mos.
000517:  NAVDRUGLAB [SANDIEGO], reported Applicant’s urine sample, received 10 May 2000, tested positive for Amphetamine/Methamphetamine.

000522:  Applicant refused medical evaluation for drug abuse.
000623:  NJP for violation of UCMJ, Article 112a (2 specs):
 Specification 1: On or about 000501, wrongfully use a controlled substance, to wit: cocaine.
Specification 2: On or about January 200 to April 2000, wrongfully possess some acmount of methylene dioxyamphetamine/methylene dioxymethamphetamine, a Schedule I control substance.
Award: Reduction to E-1, forf 502.00 per mo for 2 mos and 45 das restr and extra duties.
000728:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by use of amphetamine and methamphetamine.
000728:  Applicant advised of rights and having elected not to consult 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.

000728:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000815:  SJA review determined the case sufficient in law and fact.

000825:  GCMCA [CG 1MARDIV] 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 20000915 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. Mandatory processing for separation is required for Marines 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.

When the service of a member of U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. 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 three nonjudicial punishment proceedings for six violations of Articles of the UCMJ, to include violations of Articles 86 and 92 and three violations of Article 112a. 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. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

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 sufficient 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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