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NAVY | DRB | 2004 Marine | MD04-00424
Original file (MD04-00424.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00424

Applicant’s Request
The application for discharge review was received on 20040115. 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 discharge review before the Board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20041109. At the hearing, the Applicant was given 20 days to submit evidence of post service conduct. The Board reconvened on 20041222 and 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:

“I was young and dumb. Stressed and was not aware of my actions.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Personal reference from employer dtd 6 Nov 2004
Criminal Record Check dtd 041118

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                930616 - 940606  COG

 Period of Service Under Review :
Date of Enlistment: 940607               Date of Discharge: 980417

 Length of Service (years, months, days):

         Active: 03 10 11
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 31

 Highest Rank: LCpl                         MOS: 1141

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (14)                      Conduct: 3.9 (14)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, MM(2)

 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 :

930615:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
941121:  NJP for violation of UCMJ, Article 86: Absence from appointed place of duty 1046, 941114, violation of UCMJ, Article 92: Having knowledge of para 3b(3)(c) and (4)(c)of Sco10 1050.3U, violate the same by traveling to Peoria, IL, on a 96-hr liberty from MCES, MCB Camp Lejeune.
 Awarded forfeiture of $100.00 pay per month for 1 month, correctional custody for 21 days (suspended for 6 months). Not appealed.
941123:  Counseled for deficiencies in performance and conduct. [Being absent from appointed place of duty and for exceeding the limits of a 96-hour liberty by traveling to Peoria, IL.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950518:  Vacate suspended correctional custody for 21 days awarded at CO’s NJP dated 941121.
970603:  Counseled for deficiencies in performance and conduct. [A negative and timely response to effective counseling (concerning wall locker inspections) conducted by the section, and for displaying a lackadaisical attitude towards responsibilities as a Marine and failure to display leadership skills. Deficiencies in conduct and contempt for authority demonstrating poor judgment, lack of self discipline, professionalism and maturity. Specifically, due to the failure on 17 May 97 to follow orders given by Staff NCO. Failed four wall locker inspections between 970404-970517. Did not pass the wall locker inspection until Applicant received a Charge Sheet and the Platoon Commander was notified…Therefore, Applicant not recommended for promotion for the month of June 97.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971008:  NJP for violation of UCMJ, Article 91: Disrespectful to Cpl B_ by saying to him “Okay, just shut the F__ up then .”
         Award: Forfeiture of $259.00 pay per month for 1 month, restriction and extra duty for 14. No indication of appeal in the record.

971202:  Applicant screened for the Alcohol Treatment Facility and found to be a drug abuser (isolated incident) and alcohol dependent. Applicant declined treatment.

971212:  Applicant evaluated as a result of command referral. Counselor’s diagnostic impression were drug abuse and alcohol dependence confirmed by a credentialed provider.

971223:  CID report CCN 15Nov97-24LE-06382-7NMA/F [Extracted from CG letter dated 980320.]

980203:  NJP for violation of UCMJ, Article 91: Poked Cpl in the head with his finger; violation of UCMJ, Article 112a: (2 Specifications), Specification 1: Wrongfully use a controlled substance, to wit: marijuana; Specification 2: Wrongfully possessed a controlled substance, to wit: marijuana.
         Award: Forfeiture of $519. 00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

980209:  Counseled for deficiencies in performance and conduct. Illegal drug involvement; specifically, possession and usage, identified through the Criminal Investigation Laboratory and urinalysis testing, DOD Drug Testing Laboratory number J9801904135 and the type of drug identified was tetrahydrocannabinol (THC). Applicant advised that processing for administrative separation for misconduct is mandatory per MCO P1900.16. Applicant elected to make a statement.

980223:  NJP for violation of UCMJ, Article 112a: Wrongfully use a controlled substance on 980130, to wit: THC.
         Award: Forfeiture of $463. 00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

980302:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infraction and misconduct due to drug abuse.
980302:  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.

980302:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was illegal drug use as evidenced by Navy Drug Lab Message R 052324Z Feb 98, CID Investigation 15Nov97 – 24LE-06382-7NMA/F and nonjudicial punishment of 980203 and 980223.

980319:  SJA review determined the case sufficient in law and fact.

980320:  GCMCA [Commanding General, II Marine Expeditionary Force, U. S. Marine Corps Forces, Atlantic] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.
030410:  NDRB documentary record review Docket Number MD02-01054 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980417 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. 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 nonjudicial punishment proceedings for seven violations of Articles 86, 91, 92 and 112a 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.

The Applicant contends that his problems in the Marine Corps can be attributed to his "being young and dumb." While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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 following if provided for the edification of the Applicant. The NDRB has no authority to provide additional review of this case. 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 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 P1900.16E), effective 31 Jan 97 until 31 August 2001.

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023



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