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NAVY | DRB | 2004 Marine | MD04-00164
Original file (MD04-00164.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-00164

Applicant’s Request
The application for discharge review was received on 20031029. 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: My discharge was inequitable because it was based on 1 isolated incident in 21 months of service with no other adverse action.

Issue 2: Commanding Officer of MATSG-33, NAS Oceana stated “No Marine from this command is considered as having no potential for further military service until every available leadership, counseling, and mentoring option has been exhausted”. The fact is I was never offered any of these services.

Issue 3: Commanding Officer of MATSG-33 stated “through my actions I showed no potential for further military service”. Refer to Document 7.a.1 character reference from former Gysgt C_ R. W_ and document 7.c.3 Letter of Appreciation from C.O. NQTTC, Pensacola, FL.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character reference ( Document 7.a.1), dtd 3 September 2003
 Character reference , dtd June 27, 2003
Letter of Appreciation (Document 7.c.3), dtd 04 Dec 2000
Applicant’s ltr to the Board, dtd 9 September 2003
Applicant’s ltr to his Senator, dtd April 16, 2001
Mother’s ltr to Convening Authority
Sister’s ltr to Convening Authority, dtd March 13, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None                       HON
         Inactive: USMCR (J)               981112 - 990822  COG

 Period of Service Under Review :
Date of Enlistment: 990823               Date of Discharge: 010503

 Length of Service (years, months, days):

         Active: 01 08 11
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 65

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (2)                       Conduct: 3.8 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: Ltr of App

 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 :

981015:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver was granted not required. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
010228:  NAVDRUGLAB [Jacksonville, FL] reported Applicant’s urine sample, received 010223, tested positive for [TCH].

010308:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent [THC]. Recommended Level I for ETOH use.

010309:  NJP for violation of UCMJ, Article 92: violation of written order by possessing alcohol while under the age of 21.
 Violation of UCMJ, Article 112a: wrongful use of marijuana.
Awd red to PFC/E-2, forf of $584.00 per month for 2 months, and 45 days restriction and extra duties. Forf susp for 6 mos. Not appealed.
010409:  Counseled regarding deficiencies, specifically, wrongful use of marijuana as identified through urinalysis testing at Naval Drug Laboratory, Jacksonville, Florida, Batch 1694 specimen number 12. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.
010409:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by misconduct due to drug abuse.
010409:  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 submit statements in rebuttal and to obtain copies of the documents used to support the basis for the separation.

010409:  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 … positive urinalysis indicating wrongful use of marijuana.”

         (Record is incomplete and contains a partial discharge package and no DD Form 214.)

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010503 under other than honorable conditions for misconduct due to drug abuse (A). In the absence of a complete discharge package, the Board presumed regularity in the conduct of governmental affairs (B) and, after a thorough review of the records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (C and D).

Issues 1 - 3: The Applicant states, his discharge was based on one isolated incident in “21 months of service with no other adverse action.” There is credible evidence in the record the Applicant used illegal drugs. Drug abuse warrants processing for separation, normally under other than honorable conditions. The discharge was proper and equitable. 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. Relief 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 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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