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NAVY | DRB | 2004 Marine | MD04-01029
Original file (MD04-01029.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-01029

Applicant’s Request
The application for discharge review was received on 20040608. The Applicant requests 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 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 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. I believe my discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action.”

2. I believe I was rushed threw the system without proper instructions on how to go about being retained due to the fact that I only had one year of service left and would have gladly finished out my term. On my camp we had whole platoons of Marines waiting to be discharged that had been there some for as long as a year and still were there some even had multiple charges all different time frames yet I Have one incident and a few months later I was gone just like that. I just can’t understand why that was the case and why I was judged so harshly when I was truely a stand up Marine and still consider myself one to this date.

3. I believe if there is any program out there in which someone in my position can be credited for the remainder of the time I was discharged to the time of my actual EAS I would truely be interested I’m not looking for the easy way out I want to be able to clear my name in the eyes of the Corps which I hold near and dear to me.”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2 copies)
Hazardous Communication Standard certificate
Marine Drug Awareness certificate
Ltr of Appreciation dtd 990726
Character reference dtd 990715

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                970124 - 970316  COG

 Period of Service Under Review :
Date of Enlistment: 970317               Date of Discharge: 000201

 Length of Service (years, months, days):

         Active: 02 10 15
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 48

 Highest Rank: LCpl                         MOS: 3531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (7)                       Conduct: 4.2 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: LoA, SSDR

 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 :

970121:  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.


981102:  NJP for violation of UCMJ, Article 92: Viol lawful order.
 Awarded forfeiture of $251.00 per month for 1 months, restriction and extra duties for 14 days. Not appealed.
990619:  NAVDRUGLAB [SANDIEGO], reported Applicant’s urine sample, received 990609, tested positive for [THC].

990728:  Medical evaluation. Recommend Marine Drug Awareness Course and administrative separation.

990812:  Applicant’s statement.
990817:  Summary court-martial. Charge I: Violation Art 112a of UCMJ, to wit, marijuana. Plea: G. Finding: G.
 Awarded forfeiture of $639.00 per month for 1 months, RIR to E-1. Not appealed
CA: Approved and ordered executed on 990812.
990827:  Counseled regarding deficiencies, specifically, the illegal use of marijuana. Necessary corrective actions explained. Sources of assistance identified.

991019:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
991019:  Applicant advised of rights and having consulted 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 and the right to include statements in rebuttal to the proposed separation.

991019:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was court-martial adjudication based on positive drug urinalysis.

000126:  SJA review determined the case sufficient in law and fact.

000128:  GCMCA [CG, 1MARDIV] 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 20000201 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 his discharge was based on one isolated incident in “28 months.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation in order to maintain good order and discipline. The Applicant’s service record is marred by court-martial conviction for illegal drug use, thus substantiating the misconduct for which he was separated. 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 therefore consider his discharge proper and equitable. Relief denied.

Issue 2. There is no indication in the record or in the documents submitted by the Applicant to indicate that the Applicant was denied due process. The Applicant consulted with counsel and waived his right to an Administrative Discharge Board. Relief denied.

Issue 3. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 civilian life subsequent to leaving naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. 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 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 P1900.16E), effective 31 Jan 97 until 31 August 2001.

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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