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NAVY | DRB | 2004 Marine | MD04-00864
Original file (MD04-00864.rtf) Auto-classification: Denied


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

ex-PFC, USMCR (K1)
Docket No. MD04-00864

Applicant’s Request
The application for discharge review was received on 20040427. 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. Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041015. 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 4 to 1 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 discharge was inequitable because I had an alcohol problem which I was not treated for after my first alcohol related incident. The night when the drug incident took place I was heavily intoxicated because of my alcohol problem and made it clear in my written statement which I was unable to obtain a copy of. While at the Substance Abuse Counseling Center (SACC) I filled out a questionnaire and it was determined that I did not have any problems and had to take a mandatory five hour course, the MDAC (Marine Corps Drug Awareness Course). After my second alcohol related incident, a DUI, I was sent to SACC and filled out the same questionnaire with same answers. It was then determined that indeed I had an alcohol abuse problem and went through the Intensive Out-patient Program (IOP) which should have been prescribed to me after the initial incident. After completing the IOP a received no further alcohol related incidents, or any type of incidents for that matter. My chain of command, up to and including my Battalion C.O., felt that I should have been retained and reclassified to a different MOS and their character statements were unchanged after both incidents. There was a Marine who was with me for the first incident who also tested positive on the urinalysis and was in the vehicle at the time I received the DUI. This Marine retained and reclassified and to my knowledge is still in the Marine Corps. I feel that my alcohol problem was initially misdiagnosed leading to improper treatment. Based upon these facts and on my overall performance record I am seeking that my discharge be upgraded.”

 Additional issues submitted by Applicant’s representative, the American Legion:

 2. “Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
_______________________________________________________________________
In accordance with 32 C.F.R., section 724.166 and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition.

Review of the service record reveals that this former member maintained satisfactory PRO/CON markings of 4.4/4.3 and earned a MM and RSB. He was awarded NJP on 010406 for VUCMJ, Art. 112a. He received an DUI on 010617. Based on favorable character statements from his Senior Staff NCOs, his command recommended to the CG that he be discharged UOTHC but that the separation be suspended for 12 months. The request was denied. Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by MARCORSEPMAN, Par. 6210.5.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because his misconduct was caused by an alcohol problem and once he received treatment had no further difficulties. He has submitted copies of his service record and 4 reference letters attesting to his good post-service character and sober life style for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of page from Applicant’s Medical Record, not dtd
Copy of Applicant’s completion certificate for Marine Drug Awareness Course, dtd 23      May, 2001
Copy of page from Applicant’s Medical Record, dtd 20 Jul 2001
Copy of SACC letter on Applicant’s completion of treatment, dtd 14 Sep 01
Copy of CO, MCCES ltr to CG, MAGTFTC (Admin Sep Recommendation), not dtd
Copy of CO, Co A ltr to CO, MCCES (Admin Sep Recommendation), dtd 31 May 01
Copy of Character Statement, MGySgt J_ A_ B_, (2 pages) dtd 010514
Copy of Character Statement, GySgt H_, (3 pages), dtd 15 May 01
Copy of Character Statement , Sgt R_A_ W_ (2 pages), dtd 010515
Copy of Character Statement, Sgt A_J_E_, (2 pages), dtd Apr 18, 2001
Letter from M_Z_, not dtd
Letter from J_L_K_, not dtd
Letter from M_H_, dtd April 6, 2004
Letter from N_C_, dtd February 12, 2004
Meritorious Mast, CO Co A, MCCES, dtd 28 March 2001
Copy of Marine Corps Association Certificate of Achievement, dtd 28 March 2001
Copy of MCCES Warrior Award, dtd 28 March 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 000522               Date of Discharge: 011106

 Length of Service (years, months, days):

         Active: 00 05 28
         Inactive: 00 00 14

 Age at Entry: 24                          Years Contracted: 8

Education Level: 12                        AFQT: 82

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (4)                       Conduct: 4.3 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: MM, RSB

 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 :


000508:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.



 010406:  NJP for violation of UCMJ, Article 112a (1 spec):
 Specification 1: On or about 1330, 010402, Wrongful use, possession, etc., of a controlled substance (Cocaine) as identified by SDIEGO NAVDRUGLAB Msg R 171932Z APR 01.
Awarded: Red to PFC/E-2, eff date of Red 010510, forf of $584.00 pay per month for 2 months (suspended for 6 months), 45 days restr and extra duty (15 days suspended for 6 months). Not appealed.
010417:  NAVDRUGLAB San Diego CA, reported Applicant’s urine sample, received 010412, tested positive for cocaine.

010510:  Counseled regarding the following deficiency: [Misconduct, Viol of Art 112a of the UCMJ, my illegal drug involvement; specifically my usage of cocaine as identified by SDIEGO NAVDRUGLAB Msg R 171932Z APR 01. I am advised that processing for administrative separation for misconduct due to drug use is mandatory per MCO P1900.16E.] Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.

010523:  Applicant completed the Marine Corps Drug Awareness Course at MCAGCC Twentynine Palms, CA.

010617:  Applicant arrested for off Base DUI, BAC .14 [Extracted from Applicant’s letter to CG, dtd 3 Oct 01].

010813:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NAVDRUGLAB MSG 171932Z APR 01 positive urinalysis for cocaine.
010815:  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.

010815:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was that “on 17 April 2001, this Command was notified by NAVDRUGLAB MSG 171932Z APR 01 that Private First Class M_ tested positive for Cocaine [enclosure (2)]. On 16 April 2001, Private Class M_ received Company Nonjudicial Punishment for violation of Article 112a of the UCMJ. While pending administrative separation for his first time drug offense, SNM received a DUI on 17 June 2001. “ “CO recommended that discharge should be suspended for a period of 12 months.”

010914:  Substance Abuse Counseling Center (SACC) MGACC Twentynine Palms, CA; Applicant completed Intensive Outpatient Program (IOP) 010730 to 010828 as a result of the 010617 alcohol incident, specifically driving under the influence (DUI).

010926:  Counseled regarding the following deficiency: [Misconduct; On 010617, SNM pleaded no contest to a DUI off base.] Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.

011003:  Applicant’s statement.

011018:  SJA review determined the case sufficient in law and fact.

011023:  GCMCA, CG, Marine Air Ground Task Force Training Center, 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 20011106 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 his “discharge was inequitable because I had an alcohol problem which I was not treated for after my first alcohol related incident.” The Applicant claims that he was intoxicated when he used cocaine, on or about 010402. The Applicant successfully completed the 5 day Marine Corps Drug Awareness Course on 010521. Following his second alcohol related incident, an off Base DUI on 0106017, the Applicant successfully completed the Intensive Outpatient Program (IOP) 010730 to 010828. The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for alcohol abuse. In addition to the alcohol abuse, there is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. 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.

Issue 2. The Applicant states that his “chain of command, up to and including my Battalion C.O., felt that I should have been retained and reclassified to a different MOS.” 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. An Under Other Than Honorable Conditions 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 one nonjudicial punishment proceedings for violation of Articles 112a of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

Issue 3. The Applicant’s representative submitted the following as an issue: (EQUITY ISSUE) former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The Applicant provided four letters of character reference as documentation of his post-service. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities, in order for consideration for upgrade based on post-service conduct. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Therefore, no relief will be granted.

Issue 4. The Applicant’s Representative states that “this Applicant is requesting that his discharge be upgraded because his misconduct was caused by an alcohol problem and once he received treatment had no further difficulties.” The Applicant completed the 5 day Marine Drug Awareness Course on 010523. The off base DUI alcohol incident occurred on 010617

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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