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NAVY | DRB | 2004 Marine | MD04-00489
Original file (MD04-00489.rtf) Auto-classification: Denied


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


ex-LCpl, USMC
Docket No. MD04-00489

Applicant’s Request
The application for discharge review was received on 20040127. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list a representative on his DD Form 293. Subsequently, the Applicant obtained representation from the Disabled American Veterans

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040827. 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 (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.5.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated
Applicant’s issues, as stated on the application:

 1. “I N_ T_ (Applicant) served my country for 11 years, about 4 of those overseas, about 1 year during wartime with only one negative incident. I don ’ t think the crime (Urine Sample fit The punishment of a O T H But I was wrong sir. I need help I can ’ t get a job to take care of my family Because of my discharge I was wrong and I am very sorry would the board please help me upgrade my discharge It been over 12 yrs so please help me write me back so I can do what I need to get this Discharge change before I die. And most of all help me clear up a bad bad, error sir. I ’ am not proud of myself, and my kids are not proud of me, SO SIR & BOARD help me to try to do it right after 12yr Please Please Any help welcome.

(Signed, Applicant) N_ T_ Jr
Thanks”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

 2. “Dear Chairperson:
After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable Conditions discharge to that of Honorable, with the narrative reason changed from misconduct to convenience of the government.
The FSM served on active service from March 17, 1984 to March 3, 1992 at which time he was discharged due to Misconduct-Drug Abuse.

The FSM requests equitable relief in the form of a discharge upgrade that the current discharge does not fairly represent the almost eleven years of good military service. Equally disheartening is the fact that someone with his tenure was not allowed a chance to rehabilitate.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
 Applicant’s letter to the Board, dtd February 17, 2004
 Partial DD Form 214
 Discharge Package (4 pages)
Meritorious Mast, dtd 15 March 1990
 Court-Martial, Character Information Sheets (9 pages)
 Career Planners Worksheet, dtd 910718

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              840317 - 880314  HON
                  USMC             801117 - 840316  HON
          Inactive: USMCR (J)               800124 - 801116  COG
Period of Service Under Review :
Date of Enlistment: 880315               Date of Discharge: 920303

 Length of Service (years, months, days):

         Active: 03 11 19
         Inactive: None

 Age at Entry: 26                          Years Contracted: 4

Education Level: 12                        AFQT: 42
Highest Rank: Sgt (MOS: 6123, Helicopter Power Plants Mechanic)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 (1)                       Conduct: 3.5 (1)
Military Decorations: GCM (w/2 stars), MeritM (x3)

 Unit/Campaign/Service Awards: SSDR (w/3 stars), MUC, NUC, SASM (w/1 star),
NDSM, HSM, KLM

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

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

 Chronological Listing of Significant Service Events :

910919:  NJP for violation of UCMJ, Article 112a: Wrongful use, possession of controlled substance (Cocaine).
 Awd red to E-4, and forf of $500.00 per month for 2 months. Forf of $500.00 per month for 1 month susp for 6 mos. Appealed. Appeal denied 911104.
910827:  NAVDRUGLAB [Oakland] reported Applicant’s urine sample, received 910820, tested positive for cocaine.
911015:  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 “ wrongful use, possession of Cocaine, a controlled substance, identified during a mandatory urinalysis conducted on 15 August 1991. ”

911025:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
911124:  An Administrative Discharge Board found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

911207:  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 “ wrongful use, possession of Cocaine, a controlled substance, identified during a mandatory urinalysis conducted on 15 August 1991. ”

920130:  SJA review determined the case sufficient in law and fact.
920131:  GCMCA [Commanding General, 4 th Marine Aircraft Wing] 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 19920303 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: 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. The Applicant states his discharge was based on one isolated incident in an otherwise good 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 good order and discipline. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use; thereby, 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 discovered no impropriety or inequity. Relief denied.

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. 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. At this time, the Applicant has not provided sufficient verifiable documentation of post-service behavior to mitigate his misconduct while on active duty. Relief is not warranted.
 
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 P1900.16D), 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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