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NAVY | DRB | 2004 Marine | MD04-00130
Original file (MD04-00130.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00130

Applicant’s Request
The application for discharge review was received on 20031022. 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

Applicant’s issues, as stated on the application:

 Issue 1: “Received medical disability requiring own going medical treatment. Requesting discharge be reviewed for recharacterication. In order to obtain medical benefits through the V.A..”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Personal History chronology (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              000000 - 000000  HON
         Inactive: USMCR (J)               940715 - 941115  COG

 Period of Service Under Review :
Date of Enlistment: 941116               Date of Discharge: 960202

 Length of Service (years, months, days):

         Active: 01 01 23 (Includes lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 54

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (2)                       Conduct: 3.6 (2)

 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 :

940707:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.


950801:  Counseled for deficiencies in performance and conduct. [Lack of self-discipline, use of poor judgment, and a bad attitude towards the Marine Corps. Specifically … UA from appointed place of duty (Duty Watch).] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950818:  Counseled for deficiencies in performance and conduct. [Failing to maintain academic proficiency.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950907:  NJP for violation of UCMJ, Article 86: on or about 1345, 950821 fail(ed) to go to appointed place of duty to wit: AS A1 School.
 Awd red to PVT/E-1, forf of $427.00 per month for 1 month and 30 days restriction and extra duties. Not appealed.
951019:  Counseled for deficiencies in performance and conduct. [Dropped from the (AS) course of instruction, drop code (FAG).] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

951026:  SACO/DACO determined to be psychologically dependent on alcohol.

951027:  Medical evaluation for drug abuse found the Applicant to be a drug and alcohol abuser, not drug dependent but alcohol dependent. Level III treatment recommended and endorsed.

951103:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (2 specs).
         Specification 1: Did on or about 951023, fail to go at the time prescribed to his appointed place of duty.
         Specification 2: Did on or about 951025, fail to go at the time prescribed to his appointed place of duty.
         Charge II: violation of the UCMJ, Article 112a.
         Specification: Did on or between 951020 and 951021, wrongfully use marijuana.
 Charge III: violation of the UCMJ, Article 113.
          Specification: Did on or about 951026, found sleeping upon his post while on duty.
 Finding: to Charge I and the specification thereunder, guilty. To specification 2 under Charge I, guilty. To Charge II and specification thereunder, guilty. To Charge III and specification thereunder, not guilty.
         Sentence: Forfeiture of $569.00 per month for 1 month and 30 days confinement.
         CA action 951107: Sentence approved and ordered executed.
        
951103:  To confinement. 

951109:  NAVDRUGLAB [Great Lakes, IL] reported Applicant’s urine sample, received 951027, tested positive for [THC].

 951115:  Applicant refused treatment for substance abuse.
951116:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the Applicant’s “illegal in-service use of a controlled substance as evidenced by (his) conviction at a summary court martial for wrongful use of marijuana.”
951116:  Applicant advised of rights and having elected not to consult counsel certified under UCMJ Article 27B, elected to waive all rights to include obtaining copies of the documents used to support the basis for the separation.

951127:  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 “illegal in-service use of a controlled substance … marijuana.”

960124:  GCMCA [Commander, Marine Corps Air Bases, Eastern Area] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.     

960207:  SJA review determined the case sufficient in law and fact.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960202 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 Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief. The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents the Applicant’s drug abuse. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged to change it would be inappropriate. Relief is therefore denied.

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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