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NAVY | DRB | 2004 Marine | MD04-00400
Original file (MD04-00400.rtf) Auto-classification: Denied


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


ex-LCpl, USMC
Docket No. MD04-00400

Applicant’s Request
The application for discharge review was received on 20040105. 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 20040817. 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:

 1. “I’m sending these documents in to help in your decision in overturning my Discharge to a General or Better. The letter from my lawyer Capt. K_ shows that my court marshal was droped ant there were no charges on me. Please understand in my medical condition I need medical from the VA. I can’t even hold a regular job. Pease help me .”
2. “ TO: TO WHOM IT MAY CONCERN
FROM: R_ D_ JR ( Applicant )

 The purpose of this letter is to explain the events in my military career that have made you refuse my medical benefits. I had an outstanding career in the marines. I have received several awards and certificates throughout my enlistment including a good conduct medal. I reenlisted to the marines in October or 2001 with intention of making it a full twenty years. In March of 2002 a positive urinalysis came back on me for the use of cocaine. Immediately I refused punishment and demanded a court martial because I didn’t do it. It took several months for the court martial to come. In that time my lawyer and I talked to several lab experts and they all said the same thing. The nana gram level in my urine was 128 and the cut off level is 100. A person that would have went out and done this would have tested much higher than my level. We had my innocence proven and the day of the court martial my battalion dropped all charges and withdrew from the court martial. My 1 st sgt told me it was over and I could move on from this. Two months later I was told the btln was going to process me for administration separation even though my service record was perfect. I had never been in trouble but they still did this. Several months later the board went for two days any they decided to suspend it for twelve months so I could go ahead with my medical discharge, but the general told me since I was an nco that he was going to go ahead and kick me out. The question the VA is trying to determine is if my enlistment was honorable. There is no question of that because I do not have one bad thing on my service record. What was done to me was very unfair and unjust. Please believe that I was a great marine, I’m sure you can get my records, and see. I need these benefits to make it out here because I cant work or afford the medical. I hope you can see that I deserve my benefits and more than that I desperately need them. Thank you for taking the time to read this.
Sincerely,
R_ E. D_ Jr. ( Applicant )
CPL USMC”



Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member – 1)
Applicant’s DD Form 214 (Member – 4)
 Character reference, dtd June 20, 2003
 Character reference, dtd August 7, 2003
 Character reference, dtd September 03, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              980805 - 011001  HON
          Inactive: USMCR (J)               980729 - 980804  COG
Period of Service Under Review :
Date of Enlistment: 011002               Date of Discharge: 030530

 Length of Service (years, months, days):
         Active: 01 07 29
          Inactive: None
Age at Entry: 24                          Years Contracted: 4

Education Level: 12                        AFQT: 35
Highest Rank: Cpl (MOS: 0311, Rifleman)

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.6 (11)                      Conduct: 4.4 (11)
Military Decorations: GCM, CertCom, MeritM
Unit/Campaign/Service Awards: NDSM, SSDR (w/3stars)

 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 :

020402:  NAVDRUGLAB [Jacksonville, FL] reported Applicant’s urine sample, received 000000, tested positive for cocaine.
020508:  SACO/DACO eval/comment recommended assignment to level I (Impact) treatment, weekly visits to unit SACO and administrative separation for illicit drug use.
021008:  Counseled for deficiencies in performance and conduct. [Positive urine sample for cocaine.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
021017:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
021017:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
021017:  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 Applicant’s “positive urine sample for cocaine … (the Applicant’s) previous history of drug use prior to entering active service.”

030318:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

030410:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. He concurred with the Administrative Discharge Board’s findings except for the recommendation to suspend the Applicant’s separation.

030515:  SJA review determined the case sufficient in law and fact.
030516:  GCMCA [Commander, 2d Marine Division] 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 20030530 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).
Issues 1 & 2: There is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Applicant states his discharge was based on one incident in an otherwise “ outstanding career .” Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline this is even more poignantly true when Marines in leadership positions are involved. The Applicant’s service record is marred by a positive urinalysis for illegal drug use, thus substantiating the misconduct for which he was separated. The summary of service clearly documents that misconduct as the reason for the Applicant’s 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 discovered no impropriety or inequity; thereby, considering his discharge proper and equitable. Relief denied.

The Applicant’s contention that “ (his) court marshal was dro(p)ped an(d) there were no charges on (him)” because his lawyer established a defense that “had proven (his) innocence” is not supported by the record. The record shows the charges were dropped when it was discovered the urinalysis monitor who witnessed the Applicant giving a sample had been discharged from the Marine Corps and was no longer available to testify at the Court-Martial. Additionally, after presenting his case before an Administrative Discharge Board, the Board found the Applicant had committed misconduct due to drug abuse based upon a preponderance of evidence and they recommended by unanimous vote that the Applicant be separated with an other than honorable conditions discharge. Therefore, relief is unwarranted.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. These issues do not serve to provide a foundation upon which the Board can grant relief.

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 P1900.16F), effective 01 September 2001 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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