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NAVY | DRB | 2004 Marine | MD04-00378
Original file (MD04-00378.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00378

Applicant’s Request
The application for discharge review was received on 20031222. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by civilian counsel.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20041021. 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 3-2 that the character of the discharge shall not change. Two board members voted for a characterization of “GENERAL.” The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Drug abuse (with admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues:

The Applicant and his counsel presented oral arguments supporting a change in narrative reason and recharacterization.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Brief in Support of Application from W___ E. C___, Esquire, Civilian Defense Counsel (3 pages)
Applicant’s Brief in Support of Application (4 pages)
Ltr frm G_ G_ dtd 8 Oct 04
Ltr frm M_ B_ dtd 1 Oct 04
Ltr frm S_ B_ undated
Ltr frm J_ C_ 13 Oct 04
Badlands Training Certificate

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                840607 - 850528  COG

 Period of Service Under Review :
Date of Enlistment: 850529               Date of Discharge: 881222

 Length of Service (years, months, days):
         Active: 03 06 24
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 86

 Highest Rank: LCpl                         MOS : 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (9)                       Conduct: 4.5 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, PSB

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Drug abuse (admin discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

 Chronological Listing of Significant Service Events :

881118:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 112a:
         Specification: Wrongfully use a controlled substance between 880401 and 881103, to wit: cocaine.
         Charge II: violation of the UCMJ, Article 134:
         Specification: Wrongfully and unlawfully make under lawful oath a false statement.
          Finding: to Charge I and II and the specification thereunder, guilty.
          Sentence: Forfeiture of $440.00, confinement at hard labor for 30 days, reduced to E-1.
         CA action 881118: Sentence approved and ordered executed.

881118:  Applicant found fit for confinement and Applicant to confinement.

881129:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
881130:  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 obtain copies of the documents used to support the basis for the separation.

881130:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was based on your conviction of violation of Article 112a, Uniform Code of Military Justice at a summary court-martial.

881209:  SJA review determined the case sufficient in law and fact.

881211:  Applicant from confinement.

881213:  GCMCA [Commanding General, Marine Corps Base, Marine Corps Combat Development Command] 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 discharged on 19881222 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).

The Applicant introduced no decisional issues in writing for consideration by the Board. The Applicant and his counsel presented oral arguments supporting a change in narrative reason and recharacterization based on post-service conduct.

When the service of a member of the Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by a conviction at court-martial for violations of Article 112a and 134 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

There 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. 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged. Relief denied.

The Applicant’s service record is marred by court-martial conviction for illegal drug use, thus substantiating the misconduct for which he was separated. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

The following if provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.


Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210 MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 4, effective 29 Jul 87 until 26 Jun 89.

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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