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NAVY | DRB | 2004 Marine | MD04-00891
Original file (MD04-00891.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD04-00891

Applicant’s Request
The application for discharge review was received on 20040506. The Applicant requested the characterization of service received at the time of discharge be changed to honorable and the reason for discharge be changed to “ Completion of enlistment. ” The Applicant requested a documentary record 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 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 unanimous that the character and reason for discharge shall not change. The discharge shall remain: UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.






PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

Applicant’s issues, as stated on the application:

 “Issue I: Change type of discharge to "Honorable" based on the fact that the positive urinalysis was one isolated incident involving drugs in almost five years.

Issue II: Change narrative reason for separation to “Completion of Enlistment”, based on the fact that before acquired leave time was sold back, the vetern would have been within two weeks of normal discharge date.

Issue III: Change re-enlistment code to a code that would allow the veteran to re-enlist, based on the fact that the veteran was recommended for Level 3 treatment but was denied after receiving DUI. Squadron Sgt. Major overruled SACO's recommendation for Level 3 treatment and instead sent the veteran to Level 2. The reason this is an issue is because of the use of alcohol was a large contributing factor to the drug use. After the in-service drug use, veteran was sent to Level 3 treatment, which was successfully completed. Veteran received a "Better than Average chance of recovery". The above facts are documented in the discharge board hearing and were confirmed by the testimony of MasterSgt. D_, who at the time was the vetern’s NCOIC. The veteran’s record has been impeccable since receiving Level 3 treatment. The veteran believes that all of his superiors were acting in his best interest and in that of the Marine Corns. This is by no means an attempt to place blame elsewhere, other than where it already rests. However, if the last eleven years are an indication of the positive affect Level 3 treatment had on the veteran’s life, the veteran believes that by receiving the Level 3 treatment immediately following the DUI (as recommended by SACO), the entire in-service drug use may have been avoided. This in turn, could have spared the veteran’s career.


Applicant ’ s Remarks, as stated on his application:

 In November of 1993, I was administratively discharged from the Marine Corps for testing positive to a drug test. I understand why the Corps has adopted a zero tolerance stance concerning drug use. Furthermore, I believe that this incident in my life has helped me grow and mature into a responsible and trustworthy young man. I cannot change the actions that I have taken in the past. I have lived and learned from them, both good and bad. I have accepted the responsibility and consequences of my actions. For the past 11 years I have tried and successfully re-established credibility and integrity to my name. I am currently 33 years old, married and have two children, with a third on the way. I work for the Pensacola Police Dept. and have graduated from the police academy as the Class Commander for LEO Class #20. I believe that I have been given a second chance in a field of work that I enjoy. In the past I have looked into obtaining a waiver to re-enlist in the reserves. However, my requests have been denied. I realize that the re-enlist code that I received, due to my actions in 1993, may result in never serving in the Corns again. I am still hopeful; however, given my current age, time is starting to run out. If there is no possible way to serve in the Corps again, I am requesting that an upgrade be made to my DD-214 that would remove or re-word the narrative reason for separation. Futhermore, I am requesting that my discharge be upgraded to a full Honorable Discharge. I believe the importance of my request is self-explanatory in regards to a future in law enforcement. I am asking the members of the Discharge Board to help me clean up a mistake that I have made in the past. Please help me in this request.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Character reference, undated
Character reference, dated June 14, 1996
Letter to Applicant from City of Pensacola, dated December 1, 2003
Character reference, dated March 11, 2004
Character reference, dated March 17, 2004
Picture from newspaper article
Certificate of recognition, dated July 17, 1998
Letter from Childline and Abuse Registry, undated
Employee promotion, effective October 3, 1995
Character reference, November 7, 1996
Certificate of Appreciation, dated April 19, 1997
Letter of commendation, dated April 22, 1997
Criminal record check, dated May 13, 1994
Character reference, dated November 26, 2001
Personal endorsement, dated October 12, 2001
Character reference, dated October 10, 2001
Character reference from Pastor, Calvary Chapel, dated November 26, 2001
Letter of recommendation, dated January 4, 1997
Letter of recommendation, undated
Letter of recommendation, dated November 12, 1996
Letter from Pensacola Junior College, dated August 28, 2001
Character reference, dated May 18, 2004
Certificate of Special Recognition, dated May 24, 2004
Certificate of Special Recognition for outstanding achievement in firearms,
dated May 24, 2004
Certificate of completion, dated May 24, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:                            None                       HON
         Inactive: USMCR (J)               880625 - 881226  COG

 Period of Service Under Review :
Date of Enlistment: 881227               Date of Discharge: 931101

 Length of Service (years, months, days):

         Active: 04 10 05
         Inactive: None

 Age at Entry: 18                          Years Contracted: 5

 Education Level: 12                        AFQT: 51

 Highest Rank: Cpl                          MOS : 6531, Aircraft Ordnance Technician

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 (10)                      Conduct: 4.3 (10)

 Military Decorations: GCM

 Unit/Campaign/Service Awards: LoA (4), MM (5), NDSM, SSDR, NUC, SECNAV LoC
Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

 Chronological Listing of Significant Service Events :

880624:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver granted.


900810:  Counseled for deficiencies in performance and conduct. [Responsibility to be at an appointed place of duty on time and conduct unbecoming of a Marine.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910916:  Counseled for deficiencies in performance and conduct. [Alcohol related incident, specifically DWI .22 BAC. On 910914.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
921212:  Counseled for deficiencies in performance and conduct. [Unauthorized absence from Drill Pltn practice.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930318:  Medical evaluation: A: ETOH dependence. P: Level III through military or VA is recommended. AA meetings.

930319:  Applicant evaluated by medical officer and it was determined Applicant does need Level III treatment for ETOH dependence. [Extracted from Substance Abuse Counseling Center letter dated 930324.]

930324:  Medical evaluation at Substance Abuse Counseling Center: Determined that a medical evaluation was needed to determine if Applicant needs Level III treatment for ETOH and drug dependence.

930325:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 930305, tested positive for methamphetamine.

 930427:  NJP for violation of UCMJ, Article 112a:
 Specification: Wrongfully use a controlled substance on 930228, to wit: amphetamines.
Awarded restriction and extra duty for 45 days, reduction to E-3. Not appealed.
930510:  Counseled for deficiencies in performance and conduct. [Illegal drug involvement; specifically usage identified through urinalysis. NAVDRUGLAB San Diego, CA message 252039, amphetamines.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930527:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
930527:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was positive results of a controlled substance (amphetamine).

930609:  Level III treatment completed and Applicant signed agreement to the terms of a one year aftercare plan.
930630:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
930719:  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, that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

931013:  SJA review determined the case sufficient in law and fact.

931102:  GCMCA [Commanding General, 3d Marine Aircraft Wing] directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931101 under honorable conditions (general) 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).
Issues 1 & 2: The Applicant states his discharge was based on “ one isolated incident involving drugs in almost five years .” Despite the member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain good order and discipline. The Applicant’s service record is marred by the awarding of nonjudicial punishment (NJP) for illegal drug use; thereby, substantiating the misconduct for which he was separated. The summary of service clearly documents that misconduct due to drug abuse was the reason for the Applicant’s discharge. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board discovered no impropriety or inequity and considers his discharge proper. Normally, drug abuse warrants processing for separation under other than honorable conditions. Relief denied.

Issue 3: The Applicant contends his drug use can be attributed to his "overindulgence in alcohol" and his being “ denied Level 3 treatment ” after receiving DUI. While he may feel his abuse of alcohol was the underlying cause of his misconduct, the record clearly reflects his willful misconduct, while demonstrating he was unfit for further service. 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. Additionally, the record dose not support the Applicant’s contention he was denied Level III treatment. Especially, since the Applicant signed an agreement on 9 June 1993 to abide by the mandatory one year aftercare plan upon completing Level III treatment. Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. This issue does not provide a foundation upon which the Board can grant relief.

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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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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