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NAVY | DRB | 2004 Marine | MD04-00975
Original file (MD04-00975.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-00975

Applicant’s Request
The application for discharge review was received on 20040526. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to convenience of the government, a reenlistment code change to RE-1 and corresponding separation program designator. The Applicant requests 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 20041122. 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 OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD) (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“Issue 1 - I was so close to finishing my tour of duty that it was unfair to give me a bad discharge.

Issue 2 - Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.

Issue 3- My average conduct and efficiency ratings/behavior and proficiency marks were good. My record of promotions showed I was generally a good service member.

Issue 4 – My ability to serve was impaired by my youth and immaturity.

Issue 5 – I have been a good citizen since discharge.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Applicant’ s DD Form 214
Letter from Applicant, (3 pages) dtd May 4, 2004
Letter from N_ M_ Z_, dtd September 20, 2002
Email from T_ M_ A_, dtd May 17, 2002
Letter from T_ M_ A_, dtd March 7, 2002
Letter from J_V_ R_, unsigned, dtd January 27, 2003
Letter from Employer, dtd February 6, 2004
Copy of Employee Performance Communication Form, dtd 1/27/04
Copy of work newsletter, not dated
6 pages from the Applicants Service record
Letter from B_M_L_, dtd February 25, 2002
Letter from C_N_, unsigned, June 8, 2004
Letter from L_T_, not dated
Memorandum from L_T_, dtd 04/05/01
Letter from J_L_N_, not dated
Copy of card acknowledging attendance at Rutgers S.A.F.E.T.Y. Clinic Sports      Awareness For Educating Today’s Youth, dtd 4/8/01

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                900507 - 901219  COG

 Period of Service Under Review :
Date of Enlistment: 901220               Date of Discharge: 941217

 Length of Service (years, months, days):

         Active: 03 11 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 31

 Highest Rank: Cpl                          MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (10)                      Conduct: 4.0 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NDSM, GCM, OSR, MM, RSB, PEB

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE/INVOL DIS (BOARD) (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN Par. 6210.5.

 Chronological Listing of Significant Service Events :

900417:  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.
911018:  Counseled this date concerning my (Applicant) alcohol-related incident, specifically drinking under age. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.
940113:  NJP for violation of UCMJ, Article 112a: Did, on or about 931204 through 931214 wrongfully use a controlled substance to wit Cocaine.
Awarded reduction to LCpl, forf $500.00 pay per mo for 2 mos (total forf $1000.00), 45 das restr and 45 das extra duty to run concurrently w/o susp from duty. Not appealed.
940422:  NJP for violation of UCMJ, Article 111: Did, on or about 0305, 940130 drive to the main gate of Camp Lejeune, NC while intoxicated, (BAC %13). Violation Article 134, UCMJ: Did, on or about 2145, 940130, having been restricted to the limits of F Co, 2 nd Bn, 4thMAr, break restriction.
 Awarded. Red to PFC, forf $466.00 pay per mo for 2 mos (total forf $932.00), 45 das restr and 45 das extra du to run concurrently w/o susp from duty. Not appealed.
Applicant’s separation package missing from service record.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941217 under other than 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. 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. 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.

Issues 2. The Applicant contends that clemency is warranted because his discharge was unjust. Clemency is an act of leniency that reduces the severity of the punishment imposed with respect to a discharge adjudged by a court-martial case. The Applicant was not court-martialed and therefore, clemency is not applicable in his case. Relief denied

Issue 3. 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 2 nonjudicial punishment proceedings for violations of Articles 111and 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 4. The Applicant contends that his “ability to serve was impaired by my youth and immaturity.” The NDRB recognizes that serving in the U.S. Marine Corps is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges. In fairness to those members of the Marine Corps, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.


Issue 5. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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. 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's efforts need to be more encompassing than those provided. The documentation provided by the Applicant were not sufficient to mitigate the misconduct for which he was discharged. Evidence of continuing educational pursuits, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities, are examples of documentation necessary for an Applicant to claim consideration 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.

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 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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