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NAVY | DRB | 2004 Marine | MD04-00574
Original file (MD04-00574.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD04-00574

Applicant’s Request
The application for discharge review was received on 20040224. 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 a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040922. 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. I am requesting an upgrade because of and for my long term goals. What I have done can and will not change. I am sorry. I am sorry for my immaturity and for being inconsiderate. Thinking about alcohol clouded my judgement. The goals I have set for my future relays on this. Waiting fifteen, twenty year can not be an option for me, because being in real estate is something I am doing right know. I am soul reaching for all the help I can get. Most of the help that I will receive comes from the government. Thank you for your time.”
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: USMC              None
          Inactive: USMCR(J)                000204 – 000223  COG

 Period of Service Under Review :
Date of Enlistment: 000224               Date of Discharge: 021219
Length of Service (years, months, days):

          Active: 02 09 26
          Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 38

 Highest Rank: LCpl                         MOS: 2311
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (7)                       Conduct: 4.0 (7)
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, LOA
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 :

000202:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
010405:  Counseled regarding deficiencies, specifically, failure to be at appointed place of duty. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.
011119:  Counseled regarding deficiencies, specifically, failure to obey rules and regulations (failing to be responsible for the conduct of guard during your period of duty by allowing a simulated attack on the Ammunition Supply Point Guard Shack of a fellow Marine). Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.
011119:  NJP for violation of UCMJ, Article 81 (1 spec): did conspire or performed
                  an act for the purpose of bringing about the object of conspiracy by acting
                  out a hoax which involved the simulation of the ASP Guard being                            attacked.
 Violation of UCMJ, Article 92 (1 Spec): dereliction of duty by leaving the armory unsecured, weapons, and ammo improperly insecured and not maintaining control the guard keys and log book improperly maintained.
Award: forfeiture of 7 days pay (Total Forf $304.00), restriction and EPD for 14 days. Forfeiture of 7 days pay suspended for 4 months. Not appealed.
011218:  Counseled regarding deficiencies, specifically, failure to adhere to rules and regulations (Applicant failed to complete assigned project and tasks). Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.
020130:  Counseled regarding deficiencies, specifically, lack of dependability and attention to detail. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020208:  Counseled regarding deficiencies, specifically, failure to be at appointed place of duty. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020313:  Counseled regarding deficiencies, specifically, failure to adhere to rules and regulations (Applicant was UA from Early Crew at the ASP. Applicant was caught sleeping in his room by another NCO and was ordered to get to work. Applicant was also UA from the 0645 Company formation up topside.) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.


020419:  NJP for violation of UCMJ, Article 86 (2 Specs):
                  Spec 1: UA from AmmoCo, 1 st SupBn, during the period 0900 through                  1300, 4 Mar 02.
                  Spec 2: UA from AmmoCo, 1 st SupBn, during the period 0730 through
                  0800, 2 Apr 02.
Award: forfeiture of 7 days pay (Total Forf $323.26), restriction and EPD for 14 days. Forfeiture of 7 days pay suspended for 6 months. Not appealed.
020702:  NJP for violation of UCMJ, Article 86 (1 Spec): UA from AmmoCo,                   1 st SupBn, during the period 0545 through 1000, 14 Jun 02.
                   Award: forfeiture of 7 days pay (Total Forf $323.26), restriction and EPD                 for 14 days. Forfeiture of 7 days pay suspended for 6 months. Not                          appealed.
020910:  Applicant returned to duty as a “partial hospitalization failure” from the                  Naval Addictions Rehabilitation and Education Department, Naval
                  Hospital Camp Pendleton, CA. Medical Officer “strongly recommends                  that he [the Applicant] be expeditiously processed fro administrative             separation in accordance with MCO P1700.24B. It is felt that he will be a                 burden on his chain of command and has no future potential for further            good service.” A formal recovery plan was not provided to the patient due                  to his early exit.

021004:  NAVDRUGLAB San Diego, CA reported Applicant’s urine sample, received 021004, tested positive for THC.
021104:  NJP for violation of UCMJ, Article 86 and Article 112a.
 Article 86 (1 Spec): in that at AmmoCo, 1 st SupBn, 1 st FSSG at or about 0630, 4 Oct 02, failed to be at his appointed place of duty to wit; morning formation.
                   Article 112a (1 Spec): did at an unknown location on or about 20 Sep 02,                  wrongfully use Marijuana, a controlled substance.
 Award: reduction to pay grade E-2/PFC, forfeiture of $400.00 pay per month for 2 months (Total Forf $800.00), restriction and EPD for 45 days. Forfeiture of $300.00 pay per month for 2 months (Total forf $600.00) is hereby suspended for a period of 6 months. Not appealed.
021119:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Naval Drug Lab message 4 October 2002.


021119:  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.

021211:  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 Naval Drug Message received on 7 October 2002. The Applicant’s urinalysis tested positive for
         marijuana. The drug concentration was 43 nanograms, 26 nanograms above the DoD cutoff level.

021212:  SJA review determined the case sufficient in law and fact.

021212:  GCMCA, CG, 1 st FSSG 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 20021219 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 Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question. No impropriety or inequity is evident 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. Relief not warranted.

The Applicant contends that his problems in the Marine Corps can be attributed to “thinking about alcohol clouded my judgement”. While he may feel that his abuse of alcohol 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.

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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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