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NAVY | DRB | 2004 Marine | MD04-00836
Original file (MD04-00836.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-00836

Applicant’s Request
The application for discharge review was received on 20040421. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and to change the reentry code to RE-3 vice RE-4B. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293 but subsequently requested representation from Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041015. After a thorough review of the available 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: GENERAL (UNDER 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. “On April 28, 2003, I L_ M_ Z_ (Applicant) went to an Admin Separation board for Reason of Drug Abuse and commission of a serious offense. On April 31, 2003, I received a General Under Honorable Conditions. I am writing this letter because I deserve an Honorable Discharge from the United States Marine Corps. Since, I’ve been in the Marine Corps Logistics Base Albany, GA, I have not been treated fairly as other Marines in my Command. I have not received the proper welfare and training since I’ve been here. I had to take care of myself without any Staff NCO or knowledgeable NCO to give me the proper guidance to be a successful Marine. Honestly, Since my NCO Sgt K_ T_ M_ was in charge, I had to be left in charge various times because his leadership skills are considered unsatisfactory for his time and grade. Unfortunately, I’ve had to suffer because I was a newly assigned Pfc at the time and I had to take care of marines who had been in longer. I’ve asked to leave and be transferred a number of times but the command has no cared to listen to my issues. I also reported my former OIC Mrs. L_ W_ to my military coordinator at the time MSGT J_ W_ about her inappropriate questioning. I had an incident with her asking about me questions about my sexual preference. I never stated anything to her about my preference but Mrs. L_ W_ assumes I am Gay. My opinion is the command is prejudice and just wants me out of the Marine Corps. Frankly, I love the Marine Corps but I am tired of there excuses, I am happy that I am leaving and going on with my life. I have several jobs there for me and I am looking forward to going back to school her in Albany, GA. I wish I could be able to receive my Montgomery GI Bill but since I received a General Unger Honorable Conditions it is going to be very hard for me to pay for college on my own. I have two requests from the discharge review board. The first one is to acknowledge the fact that this command unfairly and unjustly prosecuted me. Two really take a look at my package and medical history and determine the best of your ability if I even deserved to be released from active duty with a re-code of 4B. I am not a stellar Marine but I know many Marines that have a lot of charges in their SRB and they are still Mainers till this day. I noticed that if you are stationed here you are one of the CO’s favorites (Major B_ L_) you could finish your contract. I had messed up but paid for my mistakes. I committed fraud and larceny because I lied on a travel claim. I was found guilty and I was put on fort-five days Extra Punitive Duties, Restrictions and demoted to Private First Class. AT my NJP, I had also been accused of Article 112a, for allegedly popping positive for Cocaine. I had explained to my command and told them I did not do drugs at ARC Jacksonville, FL. When they gave me the Urinalysis they did not have an observer and the procedure was done incorrectly.”

2. “I was discharged for allegledly having a patter of misconduct and level III treatment failure for positive cocaine urinalysis at ARC Jacksonville, FL.”

 3. “I have been trying to get a federal job since I was discharged but I have had no luck due to my re-entry code of 4B.

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):
4. “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of the current General Under Honorable Conditions discharge to Honorable.

The FSM served on active service from December 5, 2000 to June 13, 2003 at which time she was discharged due to misconduct.

The FSM contends the current discharge is improper and should be reconsidered because she was a good Marine, with only one mistake on her record. The FSM provides a narrative history of the events of military service which we refer the Board to for review by history for the sake of brevity.

 An impropriety will be held to exist when there is an error of fact, law, procedures, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall [and does] constitute prejudicial error), as we believe there is doubt that the discharge would have remained the same if the error had not been made, to include any changes in Army policy made expressly retroactive to this type of discharge under consideration. See, 32 CFR 724.902.
This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

As the representative, we ask that consideration be given to equitable relief, as this is also a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

 We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
40 pages from Applicant’s service record
9 pages from Applicant’s medical record
Ltr frm SLDN dtd 020610
Applicant’s statement, undated
Applicant’s appeal of Admin Sep dtd 030415, 2 pages
Applicant’s ltr to CO dtd 030312, 2 pages
Report of Admin Sep Board, 22 pages
Marine Online printout, 7 pages
Ltrs from Rep Maurice Hinchey dtd 030507
Applicant’s ltr to Senator Clinton and Congressman Hinchey dtd 030424
Applicant’s ltr to Senator Clinton dtd 030604
Sections from OPNAVINST 5350.4C
Ltr from Unemployment Insurance Agency
Sections from Marine Corps Separations and Retirement Manual
Reenlistment and eligibility codes website printout

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                000524 - 001204  COG

 Period of Service Under Review :
Date of Enlistment: 001205               Date of Discharge: 030613

 Length of Service (years, months, days):

         Active: 02 06 09
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rank: LCpl                         MOS: 3112

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                          Conduct: NMF

*No marks found in service record

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 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 :

000523:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
010810:  Counseled regarding deficiencies, specifically, failure of PFT. Necessary corrective actions explained. Sources of assistance identified.

020226:  Medical Assessment (ARC Jacksonville):
                  AXIS I: Alcohol dependence with physiological dependence.

021108:  Psychiatry consult requested for Applicant. [20 Y/O female presents today with suicidal thought that began last night after getting intoxicated before the Marine Corps Ball.]

021118:  Medical Assessment:
 AXIS I: Adjustment disorder with mixed disturbances of emotions and conduct. Alcohol abuse. R/O Social Anxiety Disorder.
                   AXIS II: PDNOS with borderline features.
                  AXIS III: None
                  AXIS IV: Chronic relationship difficulties. Possible separation
from service. Possible legal involvement.
         Social/Developmental History: [Experimented with cannabis, MDMA and cocaine – last reported use 1999.]

030303:  NJP for violation of UCMJ, Articles 112a, 107 and 121. Extracted from CO’s letter of 030501.

030404:          Counseled for deficiencies in performance and conduct. [Pattern of misconduct, unprofessional conduct and conduct unbecoming a Marine. On or about 030308 you were found to be in an unauthorized status (UA) on two accounts. You failed to be at your appointed place of duty. On 030304 your NCO and your OIC verbally counseled you that it is your responsibility to keep your COC informed on your whereabouts. On or about 030308 you were UA from two scheduled appointments and your work section… You have proven yourself to be completely UNSATISFACTORY, UNRELIABLE and UNTRUSTABLE as a Marine.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030410:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your positive urinalysis for cocaine.

030425:  Counseled for deficiencies in performance and conduct. [Level III treatment failure.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.


030428:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

030428:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

030501:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and by reason of commission of a serious offense evidenced by your NJP for violation of Articles 112a, 107 and 121 on 030303
030509:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse and commission of a serious offense, that the misconduct warranted separation, and recommended a general discharge.


*Complete discharge package not in service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030613 with a general (under honorable conditions) by reason of misconduct due to drug abuse (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (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. A General 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 nonjudicial punishment proceedings for violations of Articles 107, 121 and 112a of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Marine Corps and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.

The Applicant contends that her problems in the Marine Corps can be attributed to “not [being] treated fairly as other Marines in my Command.” While she may feel that her treatment was the underlying cause of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions. Relief denied.

Issues 2 and 4. The Applicant was recommended for separation due to misconduct by reason of commission of a serious offense and drug abuse as evidenced by her NJP of 20030303. The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant’s misconduct is clearly documented. Therefore, relief is denied.

Issue 3. 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.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the naval service is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 P1900.16F), 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 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

C. 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.
D. 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.

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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