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NAVY | DRB | 2004 Marine | MD04-00402
Original file (MD04-00402.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-00402

Applicant’s Request
The application for discharge review was received on 20040105. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general (under honorable conditions). The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region . The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20041012 . 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-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

 If appropriate add the following:
 The NDRB did note administrative error(s) on the original DD Form 214. Block 18, Remarks, should read: "CONTINUOUS HONORABLE ACTIVE DUTY FROM XXXXXX UNTIL XXXXXX," and Block 28, Narrative Reason for Separation, should read: "__________________" vice "___________________." The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

Applicant’s issues, as stated on the application:

 1. “My discharge took place in 1992 and I have spent the last 11 years regreting that mistake. I was young, and if I could go back and change the way I was discharged from active service I would. The pourpose of this discharge is so I may go into the Manatee County Sheriffs Office and start work there. I have been a positive impact upon society for the last 11 years, married for 5 of them with 1 child and 1 step-child, and I didn’t want them thinking less of me for my past transgressions.”
Additional issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars):
2. “Clemency General Under Honorable”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Employment history letter from Director of Warehousing, dated August 19, 2003
Employment history letter from Day Warehouse Manager, dated August 19, 2003
Character reference, dated August 22, 2003
Job/Character reference, dated August 19, 2003
Character reference, dated December 14, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                900404 - 900417  COG

 Period of Service Under Review :
Date of Enlistment: 900418               Date of Discharge: 920609

 Length of Service (years, months, days):

         Active: 02 01 22
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 84

 Highest Rank: LCpl                         MOS: 0351

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (7)                       Conduct: 3.6 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: SASM with 2 Stars, NDSM, SSDR, CAR, KLM, NUC, JMUA, HSM

 Days of Unauthorized Absence: 5

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

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

 Chronological Listing of Significant Service Events :

900403:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
920107:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0700, 911227 to 1300, 920101 (5 days/surrendered).
Awarded forfeiture of $439.00 per month for 1 month, restriction for 45 days. Forfeiture suspended for 6 months. Not appealed.
920409:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 920407, tested positive for THC.

 920423:  Vacate forfeiture of $439.00 awarded at CO’s NJP dated 920107.

920423:  NJP for violation of UCMJ, Article 112a:
 Specification: Use of THC on 900330.
Awarded forfeiture of $400.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-2. Not appealed.
920423:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
920424:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

920424:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

920428:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was your two nonjudicial punishments and the illegal use of marijuana, a controlled substance.

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

920512:  GCMCA [Commanding General, 1 st Marine Division (Rein), FMF] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

950523:  NDRB documentary record review Docket Number MD94-01363 conducted. Decision: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920609 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 and 2. There is credible evidence in the record that the Applicant used illegal drugs. Drug abuse warranted processing for separation. Separation under these conditions generally results in characterization of service under other than honorable conditions. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.
Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety occurred during the Applicant’s enlistment. NDRB is only authorized to consider clemency in courts-martial cases. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, to enhance employment opportunities, or for 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge. Relief not warranted.

The Applicant is reminded that he may also petition the Board for Correction of Naval Records (BCNR) at 2 Navy Annex, Washington, D.C. 20370-5100 to review his service record for a change to his characterization of service.








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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