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NAVY | DRB | 2004 Marine | MD04-00797
Original file (MD04-00797.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00797

Applicant’s Request
The application for discharge review was received on 20040414. The Applicant requested the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions. The Applicant requested a documentary record review. The Applicant did not list a representative on his 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 would like to attend school using my MGIB. Justification is presented on Form 149 Box 6. Results of the urinalysis are being obtained (2 forms awaiting) take Jan 3 2002. SNM would like to work on a stable life and career .”

 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                       HON
         Inactive: USMCR (J)               980524 - 980823   COG

 Period of Service Under Review :
Date of Enlistment: 980824               Date of Discharge: 020523

 Length of Service (years, months, days):

         Active: 03 09 00
         Inactive: None

 Age at Entry: 22                          Years Contracted: 5

 Education Level: 12                        AFQT: 67

 Highest Rank: Cpl                          MOS : 2811, Telephone Technician

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (11)                      Conduct: 4.1 (11)

 Military Decorations: GCM

 Unit/Campaign/Service Awards: N&MCOSR, SSDR, NDSM, ERB (2), SPB

 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 :

980527:  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.

990413:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty on 1808, 990320, to wit: fire watch.
Awarded forfeiture of $479.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. Appealed 990416. Appeal denied 990519.
990413:  Counseled for deficiencies in performance and conduct. [Failure to conform to Marine Corps standards, specifically my recent NJP for violations of Article(s) 86 of the UCMJ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020116:  Drug message reports Applicant’s urine sample tested positive for THC. [Extracted from Notification of Separation Proceedings, dated 020415 and Commanding Officer’s letter dated 020422.]

020405:  Medical evaluation for drug abuse found the Applicant to be an alcohol and drug abuser, not drug dependent.

020415:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by use of marijuana. [Date extracted from Purpose and Scope of the Navy Discharge Review Board and the Board for Correction of Naval Records.]
020415:  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. [Date extracted from Purpose and Scope of the Navy Discharge Review Board and the Board for Correction of Naval Records.]

020418:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 92:
         Specification: Wrongfully possessed drug paraphernalia on 020103.
         Charge II: violation of the UCMJ, Article 112A:
         Specification: Wrongfully possessed an unknown amount of marijuana on 020103.
          Finding: to Charge I and II and the specifications thereunder, guilty.
          Sentence: Forfeiture of $695.00, confinement for 30 days, reduced to E-1.
         CA action 020422: Sentence approved and, except for the portion extending to confinement, will be executed. Service of the sentence to confinement is disapproved.

020422:  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 drug message R 161803Z Jan 02 ZYB PSN 55902S24.

020425:  SJA review determined the case sufficient in law and fact.

020425:  GCMCA [Commanding General, 1st Marine Division (Rein)] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020429:  Applicant advised of VA treatment location.

020429:  Applicant refused treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020523 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 Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran ’ s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.

The Board discovered no impropriety or inequity in the Applicant ’ s case; thereby, considering the Applicant ’ s discharge proper and equitable . A service characterization of under other than honorable conditions is warranted when the service member ’ s conduct constitutes a significant departure from that expected of a member of the United States Marine Corps. The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for unauthorized absence and a Summary Court-Martial for possession of drug paraphernalia and possession of marijuana . The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, while demonstrating he was unsuitable for further service. An upgrade to honorable or general (under honorable conditions) would be inappropriate. 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 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 P1900.16F), 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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