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NAVY | DRB | 2004 Marine | MD04-00332
Original file (MD04-00332.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD04-00332

Applicant’s Request
The application for discharge review was received on 20031210. The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requested a documentary record review. The Applicant did not list a representative on his DD Form 293. Subsequent to the application, the Applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812. 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: “At the time of my “misconduct”, I was taking amphedemines. I was going through a divorce. At the same time, my unit was going out for special assignment and since I was getting out, I was left behind as part of a skeleton crew. The higher ranking NCO’s and Staff NCO's were not compatible with USMC regulation’s and therefore I was on their “shit list”. At the time of my “misconduct” I was given a lawyer that had lost the last (3) court-martial cases- with my unit!!!! The first lawyer had told me that I was being routed out of my unit due to the insubordinance of the so called Marines that were running it.
If you will look in my SRB, you will find high accomplishments throughout my USMC career, until I got to my last unit. I even had a letter from a past commanding officer that stated that he felt I was being “shafted” by the unit I was serving in at the time.
I feel that I was wronged, and routed out, by the last unit that I was with. I was squared away. For this, they did not approve of me.
Thank you for your time and service .”

 Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):
Issue 2: “ Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on April 29, 2004 and the following comments are hereby submitted:
         We concur with the applicant’s contentions that his discharge be upgraded.
We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for .”

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              940123 - 971009  HON
          Inactive: USMCR (J)               930923 - 940122  COG
Period of Service Under Review :
Date of Enlistment: 971010               Date of Discharge: 990125
Length of Service (years, months, days):

          Active: 01 03 16                  Inactive: None
Age at Entry: 24                          Years Contracted: 4

 Education Level: 12                        AFQT: 80
Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 0.0 (0)                       Conduct: 0.0 (0)

 Military Decorations: LtrApp, CertCom (x2), GCM
Unit/Campaign/Service Awards: NDSM, MUC
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 :

930811:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
980804:  NJP for violation of UCMJ, Article 92: Disobeying MCAS regulation by carrying an unregistered, loaded weapon.
 Violation of UCMJ, Article 91: Insubordinate conduct toward Sgt …
Violation of UCMJ, Article 107: Falsely signed a Record of Emergency Data … Falsely signed a Variable Housing Allowance Application …
Awd red to E-3, forf of ½ month for 2 months, 45 days restriction and extra duties. Forf of ½ month for 2 months susp for 6 mos. Not appealed.
980810:  Counseled for deficiencies in performance and conduct. [Poor judgment, lack of integrity, lack of discipline.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980913:  Counseled for deficiencies in performance and conduct. [Failure to abide by restriction limits as imposed by NJP.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
981203:  Counseled for deficiencies in performance and conduct. [Applicant’s illegal drug involvement.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
981203:  Suspended NJP punishment vacated.
981103:  NAVDRUGLAB [San Diego, CA] reported Applicant’s urine sample, received 981028, tested positive for [cocaine].
981204:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by (microfiche unreadable)**.
981207:  Applicant advised of rights and having consulted 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.
981218:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was (microfiche unreadable).
990105:  SJA review determined the case sufficient in law and fact.

 990105:  GCMCA [Commander, Marine Forces Reserve] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

 ** Parts of Applicant’s discharge package are missing, in addition to being
unreadable because of the very poor quality of the microfiche.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990125 under other than honorable conditions for misconduct due to drug abuse (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the in this case in the absence of a complete discharge package (D).

Issues 1 & 2: 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. While he may feel the stress from “going through a divorcé” was contributory his discharge, the Applicant’s service record is marred by award of non-judicial punishment (NJP) for violation of articles 91, 92 and 107. The Applicant was identified as an illegal drug user (cocaine); thereby, substantiating his misconduct . 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 to general (under honorable conditions) 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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. The Board appreciates the Applicant’s efforts to improve his life and his involvement in his local community’s counter narcotic efforts and encourages him to continue his participation. At this time, the Applicant has not provided any 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 31 Jan 97 until 31 August 2001.

B. 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.
C. 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.

D. 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.

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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