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NAVY | DRB | 2004 Marine | MD04-00750
Original file (MD04-00750.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00750

Applicant’s Request
The application for discharge review was received on 20040331. 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, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated


Applicant’s issues, as stated on the application:

 “1. I think that my discharge should be changed because when I enetered the service I was young and first time away from home. I made a mistake of using drugs. That was the first time I ever used any type of drugs and my last time. I realized my mistake as soon as I did it. In my opinion, I think that I have been punished long enough. I am requesting that you consider changing my discharge to honorable because I would like to seek employment without having to explain my misconduct in the service. ”



Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member – 4)
Letter of reference from S_ M_, dtd November 8, 2003
Copy of Undergraduate grades, (2 pages) dtd 10/08/03
Letter of reference from P_ J_ T_, dtd October 14, 2003
Letter of reference from R_ J_ W_, no date
Letter of reference from R_ N_ M_, no date
Letter of reference from C_ L_ H_, October 2, 2003
Letter from the Dawn Center (Tri-County Commission on Alcohol and Drug Abuse), dtd       September 20, 2003
Letter of reference from B_ R_, dtd October 24, 2003
Criminal Records Check, Orangeburg County Sheriff’s Office, dtd 09/30/03
Letter of reference from D_ O_, dtd November 4, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                940618 - 951211  COG

 Period of Service Under Review :
Date of Enlistment: 950612               Date of Discharge: 980106

 Length of Service (years, months, days):

         Active: 02 06 25
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 76

 Highest Rank: LCPL                MOS: 3531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (6)                       Conduct: 3.6 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, 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 :

940614:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

970730:  NJP for violation of UCMJ, Article 92 (2 specs) and violation of UCMJ, Article 111 (1 spec):
 Art 92 Spec 1: Could not stand his duties because he was under the influence of alcohol at H &SCo, 1 st Bn, 3dMar.
Art 92 Spec 2: Consumed alcoholic beverages while under the legal age at H &Sco, 1 st Bn, 3dMar.
Art 111 Spec 1: Operated a POV while under the influence of alcohol with a BAC of .083 at H &SCo, 1 st Bn, 3dMar.
Award: Red to PFC, E-2, forf $505.00 pay per month for 2 months (Total forf $1010.00), 45 days restriction and 45 days extra duty to run concurrently. Not appealed.

 970823:  Counseled for deficiencies in performance and conduct. [You are hereby counseled this date concerning misconduct for an incident involving you being disrespectful to the Duty NCO, and OOD as evidenced by the OOD logbook entry dated 970816.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971119:  NAVDRUGLAB San Diego, CA reported Applicant’s urine sample, received 971110, tested positive for THC.

 971124:  NJP for violation of UCMJ, Article 112a (1 spec):
 Spec 1: Urinalysis tested positive for THC as evidenced by NAVDRUGLAB message 192021Z Nov 97 at H &Sco, 1 st Bn, 3dMar.
Award: Red to Pvt, E-1, forf $450 pay per month for 2 months (Total forf $900), 45 days restriction and 45 days extra duty to run concurrently. Not appealed.
971125:  Counseled for deficiencies in performance and conduct. [Your use of an illegal drug as evidenced by your NJP on 971124.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971125:  Counseled for deficiencies in performance and conduct. [Your use of an illegal drug as evidenced by your NJP on 971124.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971216:  Director, Substance Abuse Counseling Center, MCB Hawaii evaluation of Applicant. Results of the evaluation: Alcohol and drug abuse. Recommend processing for discharge. Treatment until discharge: Medical Officer evaluation to confirm alcohol abuse; return to SACC for VA rights; visit SACO once a week until discharge; abstain from the use of alcohol until discharge.
971209:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by wrongful use of marijuana.
971209:  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.

971209:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was wrongful use of marijuana.

971216:  Director, Substance Abuse Counseling Center, MCB Hawaii evaluation of Applicant. Results of the evaluation: Alcohol and drug abuse. Recommend processing for discharge. Treatment until discharge: Medical Officer evaluation to confirm alcohol abuse; return to SACC for VA rights; visit SACO once a week until discharge; abstain from the use of alcohol until discharge.

971224:  SJA review determined the case sufficient in law and fact.

971229:  GCMCA, Commander, MCB Hawaii, 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 19980106 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 states that “I made a mistake of using drugs. That was the first time I ever used any type of drugs and my last time”. 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 even on a one-time basis. Separation under these conditions generally results in characterization of service under other than honorable conditions. In addition to the drug abuse, the Applicant’s service was marred by a nonjudicial punishment proceeding for two violations of Article 92 and one violation of Article 111 of the UCMJ. 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 states that “I think that I have been punished long enough”. 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 Applicant states that he “would like to seek employment without having to explain his conduct.” The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 [or] her 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 P1900.16E), 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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