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NAVY | DRB | 2004 Marine | MD04-00377
Original file (MD04-00377.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00377

Applicant’s Request
The application for discharge review was received on 20031229. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record. The Applicant listed the Disabled American Veterans as the representative on the 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 HONORABLE CONDITIONS (GENERAL) / Drug Abuse Rehabilitation Failure (administrative discharge board not required) , authority: MARCORSEPMAN Par. 6208.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

The Applicant did not submit any issues for the Board’s consideration.

Issues submitted by Applicant’s counsel/representative ( DISABLED AMERICAN VETERANS):
Issue 1: “ Dear Chairperson:After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable Conditions to that of Honorable.The FSM served on active service from September 19,1988 to July 11, 1990 at which time he was discharged due to Drug Abuse - Rehabilitation Failure.The FSM, based on submittal of the application, request a records review for an upgrade of the current General discharge, making no specific complaints of improprieties, nor requests of equitable relief. As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.Respectfully,
(Signed)
K_ L. G_ (Applicant) ”
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:                            None                       HON
         Inactive: USMCR (J)               880629 - 880918  COG

 Period of Service Under Review :
Date of Enlistment: 880919               Date of Discharge: 900711

 Length of Service (years, months, days):

         Active: 01 09 23
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 31

 Highest Rank: LCpl (0331)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (6)                       Conduct: 3.4 (6)

 Military Decorations: LtrApp

 Unit/Campaign/Service Awards: MUC

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER HONORABLE CONDITIONS (GENERAL) / Drug Abuse Rehabilitation Failure (administrative discharge board not required) , authority: MARCORSEPMAN Par. 6208.

 Chronological Listing of Significant Service Events :

880627:  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.
890620:  Counseled for deficiencies in performance and conduct. [Failure to prepare for the Commanding General’s.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
891120:  NAVDRUGLAB [San Diego, CA] reported Applicant’s urine sample, received 000000, tested positive for amphetamine-methamphetamine.

891205:  NJP for violation of UCMJ, Article 112a: … wrongful use amphetamine-methamphetamine, a controlled substance …
 Awd red to PFC, E-2, forf of $350.00 per month for 2 months, and 30 days restriction. Not appealed.
891208:  Counseled for deficiencies in performance and conduct. Wrongful use of a controlled substance (methamphetamine).] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
891215:  Medical evaluation for drug abuse found the Applicant to be a polysubstance drug abuser, w/psychological dependency. Level III treatment recommended and process for Administrative separation IAW OPNAVINST 5350 series.
900406:  Notification of reduction in Rank. Reduction to PFC effective 22 March 1990.

900604:  SACO/DACO eval/comment: SNM diagnosed Poly substance Abuse w/Dependency. Level III treatment was arranged but SNM received a DUI the day prior and treatment was cancelled. SNM was sent to the SACC for arrangement for another treatment Date, but SNM is refusing treatment.

900611:  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 “refusal to attend level 3 Drug Rehabilitation.”
900611:  Applicant advised of rights 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.

900611:  Commanding officer recommended a general discharge by reason of misconduct due to drug abuse. The factual basis for this recommendation was the Applicant “refused treatment at a level III treatment facility.”

900709:  GCMCA [Commanding General, MCRD/WRR, San Diego] 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 separated on 19900711 with an under honorable conditions (general) discharge 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. There is credible evidence in the record the Applicant used illegal drugs. Mandatory processing for separation is required for Marines who abuse illegal drugs. Separation under these conditions generally results in a service characterization of under other than honorable conditions. The Board found no indication in the record the Applicant was inequitably or improperly denied treatment for his drug use. In fact, to the contrary, the Applicant refused Level III treatment after being diagnosed as a poly-substance drug abuser. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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 service record is marred by award of nonjudicial punishment (NJP) for Wrongful use, of a controlled substance thus substantiating his misconduct. The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service; thereby, demonstrating he was unsuitable for further service. An upgrade to honorable conditions would be inappropriate. 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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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