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NAVY | DRB | 2004 Marine | MD04-00075
Original file (MD04-00075.rtf) Auto-classification: Denied



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




ex-PVT, USMC
Docket No. MD04-00075

Applicant’s Request
The application for discharge review was received on 20031014. 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 a representative on his DD Form 293.

Decision
A documentary discharge review was conducted in Washington, D.C. on 20040628. 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 Issues 1: “This applicant received a discharge of Under Other Than Honorable Conditions for drug abuse. However, a positive result for drugs was never present in any uranalysis tests given. While in the Marines, this applicant was never disciplined for any drug related actions. This applicant was a good Marine and never compromised the integrity of fellow Marines or the Marine Corps. For the above reasons, this applicant feels strongly that the Board should strongly consider changing the discharge issued. Thank you.” _______________________________________________________________________ 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: USMC              None                       HON      Inactive: USMCR (J)               930724 - 940424  COG _______________________________________________________________________ Period of Service Under Review : Date of Enlistment: 940425               Date of Discharge: 950908 Length of Service (years, months, days):        Active: 01 04 14         Inactive: None Age at Entry: 18                    Years Contracted: 4 Education Level: 12                    AFQT: 53 Highest Rank: PFC Final Enlisted Performance Evaluation Averages (number of marks): Proficiency: 3.0 (6)                     Conduct: 3.5 (6) Military Decorations: None Unit/Campaign/Service Awards: NDSM 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 : 930723:   Applicant briefed upon and certified understanding of Marine Corps policy
 concerning illegal use of drugs.
950301:  Counseled for deficiencies in performance and conduct. [Negligent loss of government property.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
 950413:  SACO/DACO eval/comment found the Applicant to be a drug abuser, drug dependent on cannabis (marijuana) and not drug dependent on hallucinogens (LSD). Applicant was briefed on his VA benefits, as they pertain to alcohol/drug treatment. Applicant was provided with the address of the nearest Veterans Administration Hospital to his home of record.
950517   Applicant made a written statement under oath detailing his drug involvement beginning in “August 1994” through “March” 1995.
950601:  Counseled regarding deficiencies concerning the Applicant’s illegal drug involvement, specifically wrongful/illegal use of marijuana and LSD as identified by (his) own admission. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.
950621:  NJP for violation of UCMJ, Article 112a: on or about 950301 – 950320 wrongfully use marijuana and LSD.Awd red to PVT, forf of $400.00 per month for 2 months, and 45 days restriction and extra duties. Not appealed.
950705:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by wrongful use of marijuana (THC) and Lysergic acid diethylamide.
950705:  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.
950705:  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) nonjudicial punishment for wrongful use of marijuana (THC) and Lysergic acid diethylamide.
950816:  SJA review determined the case sufficient in law and fact.
 950818:  GCMCA [Commanding General, Marine Corps Base 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 19950908 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 Board gave full consideration to the applicant’s petition for an upgrade of his discharge based on the merits of his record. After a very careful review of the Applicant’s record, the board disagrees with his contention since “a positive result for drugs was never present in any (urinalysis) tests” his discharge should be changed. Self-admission of drug use under oath constitutes confirmation of illegal drug abuse and requires a Marine to be processed for administrative separation. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. An upgrade would be inappropriate. Relief denied.

T here 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. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.
 
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 additional documentation to support any claims of post-service accomplishments 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 18 Aug 95 to 30 Jan 97.

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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