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NAVY | DRB | 2004 Marine | MD04-01413
Original file (MD04-01413.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01413

Applicant’s Request
The application for discharge review was received on 20040909. 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. When I was first stationed at Camp Pendleton CA, I was assigned to 3 rd BN, 1 st MARDIV, Kilo Co. During that time I did a WestPac from Sept 94 to Mar 95. I was training in Kuwait on the battlefields of Desert Storm upon discharged was warned of symptom of chemicals in ground. More on paper During my last weeks in the Corps I went to the separations program for Marines to get re-familiarized with job in the civilian world. We were also to that with in ten years of discharge if we (Marines of 3 rd BN 1 st MARDIV) developed any cancer like or cancer caused separation to report to our local VA. Hospital. For the last two years I have had a growth that’s still growing behind my right knee. I’ve seen doctors in emergency rooms when I being treated for other injuries. They all say the same at first I looks like a collection of fat. Yet it feels a though its attached to something in my leg. When I tell the doctors, that I served in the Corps they say that I have to ask the Veterans Affairs for help, they’ve never really seen it before”

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)                920723 - 930720  COG

 Period of Service Under Review :
Date of Enlistment: 930721               Date of Discharge: 970606

 Length of Service (years, months, days):

         Active: 03 10 17
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 43

 Highest Rank: LCpl                         MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (11)                      Conduct: 3.9 (11)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, LA, SWASM (w/1*), SSDR, AFEM, CA, JU, GCM, RMB

 Days of Unauthorized Absence: 16

 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 :

920722:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

960719:  NAVDRUGLAB , reported Applicant’s urine sample, received 960712, tested positive for THC.
960822:  Applicant declined medical treatment for substance abuse.
961004:  Summary Court-Martial.
                  Charge I: Violation of UCMJ, Article 112a: Wrongfully use marijuana.
                  Finding: Guilty.
 Sentence: Confinement for 20 days, forfeiture of $653.00, reduction to PFC.
CA action: 961007. Approved and ordered executed.       

961101:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NAVDRUGLAB San Diego, CA msg 192038Z Jul 96.
961101:  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.
961101:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

961202:  NJP for violation of UCMJ, Article 112a: Test positive for a controlled substance.
 Awarded forfeiture of $437.00 per month for 2 months, restriction for 60 days, reduction to Pvt. Not appealed.
Undated:         Counseled for deficiencies in performance and conduct. [Recent NJP.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970127:  SJA review determined the case sufficient in law and fact.

970127:  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 19970606 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 used illegal drugs on more than one occasion. Drug abuse warranted processing for separation. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Applicant’s medical condition does not mitigate his misconduct. Relief denied.

 The Veterans Administration determines eligibility for post-service benefits, not the NDRB. 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.
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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