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NAVY | DRB | 2004 Marine | MD04-00350
Original file (MD04-00350.rtf) Auto-classification: Denied


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

ex-Pvt, USMCR
Docket No. MD04-00350

Applicant’s Request
The application for discharge review was received on 20031218. 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.

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/Failure to Participate (Reserve not on active duty) (administrative discharge board required but waived), authority: MARCORSEPMAN 6213.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 Issue 1: “To Whom it May Concern:

 This letter is in reference to the attached application requesting a change to information contained in my military record. I would like to formally request that incorrect information regarding my military history be deleted from my record. I would also like to request that my military discharge be upgraded to accurately reflect my military performance.
In July of 1992 I was a Lance Corporal serving with 1st and 3rd Longshoreman Platoons, Beach and Port Company, 4th Landing Support Battalion, USMC Reserve. During a weekend drill I was informed to see the First Sargeant in his office. During this meeting, I was informed that I had tested positive for marijuana and am being discharged due to a “no tolerance” policy regarding drug use. I was instructed by the First Sargeant to return to the unit within a week to return my gear and uniforms.
The following week I returned to the reserve unit as instructed with my gear and uniforms. I was met by the First Sargeant and an E-5 Sargeant. They collected my gear and instructed me that I was now discharged and to not return to the unit. No paperwork was signed and no documentaion was given to me regarding the discharge.
Ten years later, I applied for a position as a United States Probation Officer. During an interview with the Chief Probation Officer, Asst. Deputy Chief Probation Officer, and several other employees of U. S. Probation; I informed them of my discharge from the military for marijuana use as well as the strange circumstances in which it took place. I was later offered a position as a Federal Probation Officer. Although this is a serious incident in my past, my accomplishments in life including my education seemed to overshadow this one event.
In August of 2003 I was informed by the Chief Probation Officer that there was a discrepancy in what I have informed them of my discharge and what was written during an FBI background investigation. I was informed that the report stated that I was abscent without leave for several months and members of the unit were unsuccesful in locating me. At the time I was living with my mother in Fairfield, CA., at the same address I had been living for over 10 years. The phone number was never changed and I never received any letters or phone calls from the reserve unit.
When I discovered this information I called the current First Sargeant at the reserve unit, First Sargeant M_. After telling him my story he stated that after being informed of a positive drug test, I should have been told to continue to attend drill while appropriate steps were taken to address the matter. First Sargeant M_ stated that my commanding officer should have been informed of the incident so that he could address the issue. First Sargeant M_ directed me to the Military Board of Corrections. After reading their application procedures I became aware that I must first apply to the Navy Discharge Review Board.
I am sending this letter with my application for correction so that my military record can accurately reflect the events that transpired. Please feel to contact me if you have any questions regarding this issue.
Sincerely,
(Signed)
C_ G_ H_ (Applicant) ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s ltr to the Board
Bachelor of Arts in Psychology from California State University, Chico
Master of Arts in Social Science from California State University, Chico

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None    
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 901214               Date of Discharge: 920825

 Length of Service (years, months, days):

 Active: 00 06 11 (IADT)
          Inactive: 01 02 00

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 71

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 2.6 (5)              Conduct: 2.6(5)

 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/Failure to Participate (Reserve not on active duty) (administrative discharge board required but waived); authority: MARCORSEPMAN 6213.

 Chronological Listing of Significant Service Events :

901213:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver was granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
910104:  Enlistment contract into the USMCR documents acknowledgement of the requirement to participate in 48 scheduled drills and not less than 14 days of annual training per year for 6 years upon completion of initial active duty training.

920404:  Applicant … did absent himself without authority from drill on 2 and 3 May 92.

920421:  NAVDRUGLAB [Oakland, CA] reported Applicant’s urine sample, received 920413, tested positive for THC

920501:  Counseled for deficiencies in performance and conduct. [Abuse of Drugs (THC), which resulted in a positive urinalysis.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920609:  Applicant reduced to PFC, E-2.

920607:  Commanding Officer notified the Applicant of the Command’s intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the Applicant’s “use of/possession of/involvement with illegal substances, and his failure to attend Regularly Scheduled Inactive Duty Training for the months of May and June 1992”.

920610:  Letter of intent to administratively separate under other than honorable conditions for the failure to participate in reserve training was sent via certified mail, return receipt requested. Applicant acknowledged receipt of Commanding Officer’s letter.
920610:  Applicant advised of his 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.

920611:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to unsatisfactory participation in the Ready Reserve. The factual basis for this recommendation was the Applicant’s “use of/possession of/involvement with illegal substances, and his failure to attend Regularly Scheduled Inactive Duty Training for the months of May and June 1992”.

920812:  SJA review determined the case sufficient in law and fact.

920813:  GCMCA [Commanding General, 4 th Marine Division] directed the Applicant's discharge under conditions other than honorable by reason of misconduct due to unsatisfactory participation in the Ready Reserve.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920825 under other than honorable conditions for misconduct due to unsatisfactory participation in the Ready Reserve (A, B, and C). The Board presumed regularity in the conduct of governmental affairs (D). 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 (E and F).

Issue 1. The Applicant stated he did not understand the conditions of his release ; however, the record does not support this contention. The Applicant acknowledged receipted for the letter of intent dated 920609, to administratively separate under other than honorable conditions for the failure to participate in reserve training and a pending “nonjudicial proceeding as a result of a positive urinalysis.” Specifically, the Applicant missed scheduled drills for the months of May and June 1992, totaling 9 unexcused absences. The Applicant was advised of his rights, chose not to consult with legal counsel, and elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation. Additionally, the Applicant signed a contract on 901214, while enlisting into the USMCR, that acknowledged his understanding of the requirement to participate in 48 scheduled drills and not less than 14 days of annual training per year for 6 years upon completion of initial active duty training. The Applicant’s discharge characterization accurately reflects his service to our country. The discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board discovered no impropriety or inequity; thereby, considering the Applicant’s discharge proper and equitable. Relief denied.
 
The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D, effective 890627 until 950817) states that a Marine may be separated for unsatisfactory participation in the Ready Reserve under criteria established in MCO P10014.1.

B. Marine Corps Reserve Administrative Management Manual, MCO P10014.1.

C. Table 6-1, Guide for Characterization of Service, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D, effective 890627 until 950817).

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.

E. 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.

F. 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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