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NAVY | DRB | 2004 Marine | MD04-00517
Original file (MD04-00517.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00517

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 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, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 1. “ My fellow brothers and sisters, I write to you all in humbleness. First of all. Thanking you for giving me the opportunity to fill out an application for review of my discharge. Secondly, for taking the time out to review it. There are times where I wish I could change the bad decisions I’ve made in my life. I know we all do at times. I have made a valid effort in changing my life and I continue to be a Christian, a productive citizen, and now, a loving father. I’ve matured in age, mind and spirit from the time that I was in the Corps. It was a blessing for me to serve my country. If I had the same mentality in 2000, like I have now, I would have finished what I started. I apologize. I can not change this fact but I can surely improve on it. I want to continue to improve in my life. This is one of the reasons why I would like for you all to upgrade my discharge. This would not only be a blessing for me but for others as well. God has blessed you all to be in a position to change peoples’ lives. If you all give me the opportunity to be more productive in society, I can return the favor and be a blessing to my two year old daughter as well as others. I sincerely believe we are here on earth to live abundantly according to God’s will and more importantly, to love and help one another. I want to be given the opportunity to help others, whether it is opening a restaurant for people to eat, even inviting homeless people to come and eat or just being able to send my daughter to college so she can become a productive citizen and pass on the blessings to the next generation. If anybody is in need and they come to me, I want to be able to help them. With this upgrade I can. I would like to be able to contribute to our country. I wish I could reveal my heart to you all to show how sincere and true I am. I am not the same person I was then. Mentally and spiritually, I’m stronger than ever and it’s because of Jesus. I hope and pray that you all find favor in this letter that I have typed from the heart. Attached to this letter are two references, acknowledging my character for gainful employment, a copy of my certified nursing assistant certificate from the state of North Carolina, and a resume explaining what I have done recently. One reference is from my church and the other is from my CNA instructor. On January 15, 2004, I was hired as a orthodontic assistant here in Anchorage, Alaska. I also work part-time as a cook for my father. He retired as a 1 st Sergeant in the US army. I continue to live right, better myself, and work hard. I hope and pray you all reach deep into your hearts and find favor in this letter. Being able to influence lives is truly a blessing. Thank you for your time and patience. May God be with you all and may he grant you peace.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character reference from Rev. P_ E_
Course completion letter from J_ Y_
Certificate of completion on CAN I Course
Résumé

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                980116 - 980125  COG

 Period of Service Under Review :
Date of Enlistment: 980126               Date of Discharge: 000302

 Length of Service (years, months, days):

         Active: 02 01 06
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 42

 Highest Rank: LCpl                         MOS: 3043

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (6)                       Conduct: 3.7 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: MM, CC

 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 :

980109:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

991004:  NJP for violation of UCMJ, Article 91 (3 specs).
 Specification 1: Disobeyed order from Cpl M_ to turn in his weapon.
Specification 2: Disrespectful to Cpl M_ on 990826.
Specification 3: Disobeyed Sgt B_ by not returning to his work section on 990910.
Violation of UCMJ, Article 86: UA from work section.
Awarded forfeiture of $260.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
991105:  NAVDRUGLAB Jacksonville, FL, reported Applicant’s urine sample, received 991101, tested positive for THC.
991117:  NJP for violation of UCMJ, Article 112a: Wrongfully use marijuana.
 Awarded forfeiture of $500.00 per month for 2 months, restriction for 60 days, reduction to PFC. Not appealed.
991209:  Medical evaluation for drug abuse found the Applicant to be a drug abuser.
000201:  NJP for violation of UCMJ, Article 90: Disobeyed LtCol. B_’s command not to consume alcohol while on restriction; violation of UCMJ, Article 134: Break restriction on diverse occasions between 991208 to 991212.
 Awarded forfeiture of $450.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt. Not appealed.
000204:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
000204:  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.
000204:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was a positive urinalysis and battalion level NJP.

000219:  SJA review determined the case sufficient in law and fact.

000219:  GCMCA [CG, 2d MARDIV] 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 20000302 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. 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. Additionally, 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. 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 remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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 P1900.16E), 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 “ 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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