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NAVY | DRB | 2004 Marine | MD04-01295
Original file (MD04-01295.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01295

Applicant’s Request
The application for discharge review was received on 20040806. 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 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. “I was sentenced to 6 months in the Brig but asked to be retained. This was granted but when I returned to my unit I was unvoluntarly admin separated. I never wanted to leave the Marines. It was not my choice. I chose my sentence in order to stay in.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                940512 - 940918  COG

 Period of Service Under Review :
Date of Enlistment: 940919               Date of Discharge: 970609

 Length of Service (years, months, days):

         Active: 02 08 21 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 58

 Highest Rank: LCpl                         MOS: 0341

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (5)                       Conduct: 4.4 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, AFEM

 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 :

940916:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
960506:  Counseled regarding deficiencies, specifically, not using the chain of command. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.

 960702:  NJP for violation of UCMJ, Article 134: Hazed newly joined Marines.
 Awarded forfeiture of $237.00, restriction and extra duties for 14 days (all suspended for 6 months). Not appealed.
960710:  Counseled regarding deficiencies, specifically, hazing 2 new Marines on 960701. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.
961022:  Special Court-Martial.
                  Charge I: Violation of UCMJ, Article 92.
 Specification: Disobeyed a lawful general order on 960910.
Charge II: Violation of UCMJ, Article 112a (2 specs).
Specification 1: Wrongfully possess anabolic steroids.
Specification 2: Wrongfully import anabolic steroids into the US.
Findings: Guilty to all charges.
 Sentence: Confinement for 5 months, forfeiture of $583.00 for five months, reduction to Pvt.
CA action: 961219. Sentence approved and ordered executed.

 970408:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and due to a pattern of misconduct as evidenced by his page 11 entries, NJP and special court-martial.
970408:  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.

970408:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and due to a pattern of misconduct.

970508:  SJA review determined the case sufficient in law and fact.

970508:  GCMCA [CG, 1 st MARDIV (Rein)] 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 19970609 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. There is credible evidence in the record that the Applicant possessed illegal drugs. Drug abuse warranted processing for separation. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Applicant’s claim that he was separated against his will and that he was taken to a special court-martial for the same offense that formed the basis for his separation does not affect the propriety or equity of the discharge. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident during the Applicant’s enlistment. Additionally, 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. Relief not warranted.

 The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 31 Jan 97 until 31 August 2001.

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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