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NAVY | DRB | 2004 Marine | MD04-01148
Original file (MD04-01148.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-01148

Applicant’s Request
The application for discharge review was received on 20040707. 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. The Applicant listed Wisconsin Department of Veterans Affairs as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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. “To Whom It May Concern,

My name is S_ R_ (Applicant). I joined the United States Marine Corps on May 26,1992 and was Other Than Honorably discharged on September 8, 1995 because of failing a urinalysis. The concern I have is that I do not get any benefits even though my record is pretty clean other than one isolated incident.

When I was discharged I was 23 years old, I now am 32 and I really have grown a lot as an individual. I got married in 1996 to L_, and had my beautiful daughter, H_, in 1998. She is the world to me and I would love to give it to her but I am unable to afford to go to school to better myself with education. It is to my understanding that serving honorably for more than 3 yrs I am entitled to the benefits, but I am not sure and this is my intention for this letter.

My military history is as follows. After completing boot camp on August 21, 1992 I was ordered to go to School of Infantry (S.O.I.) training at Camp Pendleton. After completing Infantry training in November of 1992, I was ordered to go to the fleet at 29 Palms, Ca.

After being there only a short time we were sent to Somalia on December 23 1992 and stayed there until January 21, 1993. I was only there a short time but in those 28 days I had the pleasure of shaking hands with the Honorable George Bush on Christmas Day and also had the pleasure of helping some unfortunate human beings. After that I came home and was off again to be stationed in Okinawa, Japan for the period of 6 months.

Here is a list of decorations, medals, badges, citations and campaign ribbons awarded or authorized from the Marine Corps: National Defense Service Medal, Joint Meritorious Unit Award, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon. Rifle Marksmanship Badge, Good Conduct Medal, and a Certificate of Appreciation, all of which I am very proud of and no one can ever take that away from me.

They always tell you in boot camp that “Once a Marine, always a Marine”, but as soon as an individual makes one stupid mistake, that’s it, no second chances and that to me does not justify the saying. I gave up my life for 3 yrs 3 months and 13 days for this country and got nothing in return. They took away my uniforms that I had earned, my medals, which meant everything to me at the time and just escorted me off the base. The End.

Please take a moment to look and think about one incident that has truly affected my life and one that I will never forget. My history in the Marines, in my eyes, was a very good one accept for one isolated incident that I deeply regret. I was a young and stupid man with nothing back then and I really never thought how that one thing would affect me now. Please understand this letter comes with a heavy heart and consider re-issuing my benefits for I truly believe I deserve them and also that one should not be penalized so severely for one mistake in life.

In short. Please reconsider upgrading my Other Than Honorable to an Honorable because I would like to tell my daughter that her Dad served his country and be able to show her an Honorable Discharge and all the ribbons and medals that I earned while in the U.S.M.C. I would further like to use the GI bill to go back to school to make a better life for my family. Here are five character references that I hope you will take into regard as the type of person one can be even after all that has happened in life. They are in regards to my work ethic, I have been at the same job ever since I got out of the Marines. The name of the place is B_ Corporation in Germantown WI. They are also in behalf of the family man that I am so proud to be.

Thank you for your time and consideration to this matter. It is greatly appreciated.
Social Security Number: (deleted)
Telephone Number: (deleted)
S_ S_ R_ ( Applicant )
Semper Fidelis”

 Additional issues submitted by Applicant’s counsel/representative (WISCONSIN DEPARTMENT OF VETERANS AFFAIRS):

 2. “The applicant in this case, S_ S_ R_ ( Applicant ), was discharged September 8, 1995. Reason of separation failing urinalysis. Mr. S_ S_ R_ ( Applicant ), entered the United States Navy May 26, 1992.

The applicant comes now before the Board to present the following matters of equity and property to be considered by the Board on the issue of the applicants request to upgrade the character of his separation from the United States Navy to fully honorable.

In consideration of the Board, however, we hope the Board is not limited to the events which precipitated the discharge. The congressional mandate which permits consideration of other factors.

The issue of the applicants recharacterization review’s the applicant entire military record based on his equality and length of service.

In limitation of use of urinalysis results due process as we a public law 95-126 , other arguments Lipsman V. Brown case # 76 1175 D.D.C and 32, C.F.R. 70.6C.

The applicant was a good person, and was a good Navy Solider, and his overall service records were good. The applicant did not have proper counseling, no counseling and no rehabilitation program was offered to applicant or rehabilitation transfer.

In conclusion, the applicant deserves a re-characterization of his separation to fully honorable as a matter of equity based on the severity of punishment.

For Applicant

J_ E_ B_ (representative)
Veterans Bureau of Service
Training and Employment
 (address deleted) ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Ltr frm G_ M_, undated
Ltr frm A_ S_, dtd 040420
Ltr frm B_ P_, dtd 040424
Ltr frm T_ and D_ K_, dtd 040427
Ltr frm D_ E_ dtd 040426

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: 920526               Date of Discharge: 950908

 Length of Service (years, months, days):

         Active: 03 03 13
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 48

 Highest Rank: LCpl                         MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, JMUA, AFEM, SSDR, RMB, CoA

 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 :

920518:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
931116:  Applicant diagnosed alcohol dependant, ordered to Level III treatment starting 931229.

931228:  Applicant issued TAD orders for Level III treatment at Camp Pendleton, CA.

 941116:  Counseled for deficiencies in performance and conduct. [VUCMJ Art. 86 and 134]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950714:  Counseled regarding deficiencies, specifically, the illegal use of marijuana. Necessary corrective actions explained. Sources of assistance identified.

 950728:  CDACC comments: [Applicant] diagnosed alcohol dependant and cannabis abuser. Recommend for administrative separation and receive V.A. treatment in conjunction with discharge.

950816:  NJP for violation of UCMJ, Article 112a: On board MCACGCC on or about 950706 use THC.
 Awarded forfeiture of $478.00 per month for 2 months, restriction and extra duties for 45 days, RIR to E-2. Not appealed.
950816:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your NJP and positive urinalysis.
950816:  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.

950818:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

950821:  Request for VA treatment approved.

950829:  SJA review determined the case sufficient in law and fact.

950908:  GCMCA [CG, 2MARDIV] 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 19950908 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 “history in the Marines… was very good one [except] for one isolated incident” and, that he served “3 yrs 3 months and 13 days for this country and got nothing in return.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Marine Corps in order to maintain proper order and discipline. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. Separation under these conditions generally results in characterization of service under other than honorable conditions. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

Issue 2. Counsel states that the Applicant was, “a good person and a good Navy Soldier, and his overall service records were good” and that the Applicant “did not have proper counseling and no rehabilitation program was offered to applicant or rehabilitation transfer.” 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. Furthermore, the Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use or alcohol dependency. The Counsel’s allegations, that the Applicant was denied assistance or proper counseling do not refute the presumption of regularity in this case. 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.

The Board found no indication in the record or in the documents submitted by the Applicant that the Applicant was denied his proper due process. The Applicant tested positive for drug use and this infraction of the UCMJ was adjudicated at nonjudicial punishment. The Applicant was properly notified and waived his right to council and an administrative discharge board. 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. 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 18 Aug 95 to 30 Jan 97.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023


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