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NAVY | DRB | 2004 Marine | MD04-00515
Original file (MD04-00515.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD04-00515

Applicant’s Request
The application for discharge review was received on 20040209. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041008. 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.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


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

 1. “My discharge is inequitable because it’s based on events that happened at a very young age. As I’ve grown older I’ve come to regret my actions. I served this country for four years - and earned a National Defense ribbon also a south west Asia ribbon.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                870312 - 871228  COG

 Period of Service Under Review :
Date of Enlistment: 871229               Date of Discharge: 911129

 Length of Service (years, months, days):
         Active: 03 11 01
          Inactive: None
Age at Entry: 18                          Years Contracted: 6

 Education Level: 12                        AFQT: 62
Highest Rank: LCpl                         MOS : 0351

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.3 (11)                      Conduct: 3.5 (11)

 Military Decorations: None
Unit/Campaign/Service Awards: SSDR with 1 Star, MM, ASR, NDSM, MUC, RSB, SASM with 1 Star, LoA
Days of Unauthorized Absence: 6

 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 :

890721:  NJP for violation of UCMJ, Article 112A:
 Specification: Wrongfully use marijuana on 890626.
 Awarded forfeiture of $250.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-2. Not appealed.
900404:  NJP for violation of UCMJ, Article 92 (2 specs):
 Specification 1: Failure to obey an order on 900325, to wit: failed to sign out in liberty log.
 Specification 2: Failure to obey an order/regulation on 900325, to wit: by exceeding libo limits.
 Violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0800, 900325 to 2200, 900326 (1 day).
Awarded restriction and extra duties for 45 days, reduction to E-2. Reduction suspended for 6 months. Not appealed.
910613:  NJP for violation of UCMJ, Article 112A
 Specification: Wrongfully used marijuana on 910520.
 Awarded forfeiture of $422.00 per month for 2 months, restriction and extra duties for 30 days, reduction to E-2. Not appealed.
910613:  Counseled for deficiencies in performance and conduct. [My frequent involvement and violations of the UCMJ which resulted in three NJP’s. I understand that this type of conduct should it continue, represents an unacceptable deficiency in my performance which materially interferes with the proper execution of my duties.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910617:  Applicant found to be alcohol dependent and a drug abuser. Recommend Level II treatment. Urinary surveillance program.

910626:  Applicant declined treatment for substance abuse at a Veterans Administrative Hospital.
911010:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
911011:  Applicant advised of rights and having consulted 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.
911011:  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 nonjudicial punishments of 890721 and 910613 for wrongful use of marijuana.

911025:  SJA review determined the case sufficient in law and fact.

 911031:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 1200, 911015 to 0900, 911021 (5 days).
 Awarded restriction and extra duties for 14 days. Not appealed.
911105:  GCMCA [Commanding General, 2d Marine Division, FMF (Camp Lejeune, NC] 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 19911129 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 U.S. 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 three nonjudicial punishment proceedings for six violations of Articles 86, 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 discharge is inequitable because it is based on events that happened at a “very young age.” 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 credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for Marines who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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. 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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