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NAVY | DRB | 2004 Marine | MD04-00403
Original file (MD04-00403.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00403

Applicant’s Request
The application for discharge review was received on 20040109. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. 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. “An upgrade is requested because the discharge was for failing a urinalisis that was not random, and was not based upon probable cause .”
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)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:                            None                       HON
         Inactive: USMCR (J)               000509 - 000531  COG

 Period of Service Under Review :
Date of Enlistment: 000601               Date of Discharge: 010912

 Length of Service (years, months, days):

         Active: 01 01 00 (Accounted for lost time.)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 37

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.4 (5)                       Conduct: 2.5 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: (72) 20010206-20010418

 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 :

000505:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
010327:  Applicant to UA (AWOL) since 0730, 010206.

010327:  Applicant declared a deserter on 010327 having been an unauthorized absentee since 0730, 010206 from 2d BN 6 th MAR 2d MARDIV.

010426:  Applicant surrendered from UA (AWOL) at 0701, 010426.

010426:  Counseled for deficiencies in performance and conduct. [Failed to return to appointed place of duty for three months.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010426:  NJP for violation of UCMJ, Article 86: … UA …
Violation of UCMJ, Article 87: … through neglect, miss(ed) movement …
 Awd red to E-1, forf of $521.00 per month for 2 months, and 25 days CCU. Not appealed.
010716:  NAVDRUGLAB [Jacksonville, FL] reported Applicant’s urine sample, received 010711, tested positive for THC.

010723:  Counseled for deficiencies in performance and conduct. [Illegal drug involvement.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010724:  NJP for violation of UCMJ, Article 112a: … wrongfully used a controlled substance …
Awd forf of $521.00 per month for 2 months, and 45 days restriction and extra duty. Not appealed.
010725:  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 “incident of illegal drug use.”

010726:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all his rights.

010801:  SACO/DACO eval/comment rules out substance abuse/dependence. Drug abuse, isolated incident; no treatment indicated. Recommended processing for Administrative Separation.

010806:  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 “incident of illegal drug use.”



010814:  NJP for violation of UCMJ, Article 92: … violate(d) a lawful order … by wrongfully consuming alcohol under age.
Violation of UCMJ, Article 134: … left his restricted area.
Violation of UCMJ, Article 134: … left his restricted area.
 Awd forf of $521.00 per month for 2 months, and 45 days restriction and extra duty. Not appealed.
010830:  SJA review determined the case sufficient in law and fact.

010831:  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 20010912 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).

Issue 1: The record dose not support the Applicant’s contention that his positive urinalysis was administered incorrectly or in violation of regulations. T here 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. There is credible evidence in the record that the Applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The Applicant acknowledged the same when he waived his right to an Administrative Discharge Board. 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, a positive employment record, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. The Board appreciates the Applicant’s efforts to improve his life and his involvement in his local community’s counter narcotic efforts and encourages him to continue his participation. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. Relief is not warranted.

A service characterization of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a United States Marine. The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. In addition to receiving nonjudicial punishment (NJP) for illegal drug use, the Applicant’s service record is marred by the award of NJP on two other occasions for unauthorized absence, missing movement, failure to obey orders , and breaking restriction . The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives regulating good order and discipline in the naval service, while demonstrating he was unsuitable for further service. An upgrade to honorable 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 P1900.16F), 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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