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NAVY | DRB | 2004 Marine | MD04-00976
Original file (MD04-00976.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-00976

Applicant’s Request
The application for discharge review was received on 20040525. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requests 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 20041022. 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.

 The NDRB did note an administrative error on the original DD Form 214. Block 24, Character of Service, should read: " UNDER OTHER THAN HONORABLE CONDITIONS " vice "Other Than Honorable." The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 1. “Please notify me in writing of change. Or contact By phone

I should be a asset to the war on terror. ! Urragh Semper Fi.
My discharge was inequitable because it was based on one isolated incident in less than 1 year of service with no prior action. The dicharge was inequitable also because applicant was not a non comissioned officer.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter of Academic Good Standing from Remington College, dtd May 11, 2004
Character Reference, (date altered)
Young Marine Certificate of Discharge
Completion Certificate from the Motor Vehicle Operator Course at Fort Leonard Wood,
dtd 16 January 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR (J)               020405 - 020631  COG

 Period of Service Under Review :
Date of Enlistment: 020701               Date of Discharge: 030307

 Length of Service (years, months, days):

         Active: 00 08 07
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 41

 Highest Rank: PFC        (MOS: 9900, General Service Marine)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (*)                       Conduct: 4.0 (*)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

         * Extracted from SJA’s letter to the Commanding General, Training Command.

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 :

020404:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

021120:  NJP for violation of UCMJ, Article 112a: … was seen inhaling aerosol.
 NJP for violation of UCMJ, Article 92 (2 specs):
 Specification 1: … consuming alcoholic beverages while underage.
Specification 2: … consuming alcoholic beverages in the Specker Barracks.
Awarded forfeiture of $619.00 per month for 2 months, restriction and extra duties. Not appealed.
021120:  Counseled for deficiencies in performance and conduct. [Misconduct and violation of articles 112a and 92x2.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030102:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the Applicant’s “conviction of Nonjudicial Punishment (NJP) for the use of a substance to get high (inhaling aerosol).”
030107:  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.

030120:  Medical evaluation in the Emergency Room of General Leonard Wood Army Community Hospital for the purpose of having a legal sobriety examination and blood alcohol determination. Applicant was suspected of underage drinking. Based on the medical evaluation the Applicant was determined to “(have) been drinking alcoholic beverages.”

030123:  NJP for violation of UCMJ, Article 92: … consuming alcoholic beverages while underage.
 NJP for violation of UCMJ, Article 134: … severely intoxicated … and found to have a BAC of .294.
Awarded forfeiture of $619.00 per month for 2 months, restriction and extra duties. Forfeiture suspended for 6 months. Not appealed.
030124:  Counseled for deficiencies in performance and conduct. [Misconduct and violation of articles 92 and 134.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030128:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was the Applicant’s “conviction of Nonjudicial Punishment (NJP) for the use of a substance to get high (inhaling aerosol).”

030210:  SJA review determined the case sufficient in law and fact.

030212:  GCMCA [Commanding General, Training Command, Quantico, VA] 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 20030307 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: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. The record does not support the Applicant’s contention that he was only involved in “one isolated incident in less than a year.” While he may feel his discharge was inequitable because he was not a non-commissioned officer, the Applicant’s service record is marred by award of nonjudicial punishment (NJP) on separate occasions for illegal drug use, failure to obey orders and regulations, underage drinking and severe intoxication (BAC .294) which required him to be transported to the hospital; thereby, substantiating his misconduct . 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 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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