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NAVY | DRB | 2004 Marine | MD04-01441
Original file (MD04-01441.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01441

Applicant’s Request
The application for discharge review was received on 20040913. 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 did not list any representative on the DD Form 293. Subsequent to application, the Applicant obtained representation from Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050304. 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-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated
 Applicant’s issues, as stated on the application:

1. “I served my country in war time and did my time I believe that one childish mistake is no reason to lose all my benefits and my respect. Ive went 11 years with a Bad Discharge I think that’s long enough I would like to be proud of my Marien Corps service and be able to show my grand kids my discharge without shame. Thank you for you consideration”

 Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

 2. “Propriety or Equity Issue(s): The applicant was a diagnosed alcoholic who was not treated while in service. He should have been offered treatment and retained in the service.
 Drawn Shape (ignored-not implemented yet)
Statement: In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant has petitioned the Board to upgrade his discharge to reflect his honorable service. He received the Good Conduct Medal for service from 8/16/88 to 8/15/91. The applicant is a veteran of Operation Desert Storm, who suffered from an addiction to alcohol and marijuana which led to his misconduct and was diagnosed in 1992. The applicant’s records do not indicate that he was offered treatment for his addiction as was proper, and asks that the Board upgrade his discharge based on that fact. The applicant’s numerous violations of the UCMJ are nearly universally linked to his alcohol dependency, and are symptoms of a disability, rather than acts of willful misconduct.

The Veterans of Foreign Wars’ express purpose in providing this statement and any other submittals or evidence filed is to assist this applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

 This case is now respectfully submitted for deliberation and disposition.”

Documentation
 In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
 Applicant’s DD Form 214 and 215

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                880123 - 880815  COG

 Period of Service Under Review :
Date of Enlistment: 880816               Date of Discharge: 920814

 Length of Service (years, months, days):

         Active: 03 11 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 36

 Highest Rank: LCpl                         MOS: 1371

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (6)                       Conduct: 4.4 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (2), NDSM, SASM (3), NUC, KLM, LoA (3), GCM

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

 Chronological Listing of Significant Service Events :

880122:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
900802:  Counseled for deficiencies. [Failure to maintain his minimum uniform issue.] Necessary corrective actions explained, sources of assistance provided, disciplinary warning issued.

911125:  Counseled for deficiencies in performance and conduct. [Alcohol related incident. On 911101 SNM was a passenger in a veh pulled over by PMO for erratic driving. The incident involves a DWI/DUI chg. SNM counseled on his lack of resp towards himself and his fellow Marines for permitting someone who had been drinking alcohol to drive as well as being a passenger in that veh.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920408:  Medical Evaluation as a result of a command referral:
         Diagnostic Impression: Alcohol Dependent 303.90/Cannabis Dependent 304.30 (IN REMISSION).
         Recommendations:
1.)      Level III (Possible VA rights due to EAS)
2.)      3 AA Meetings per week until treatment
3.)      Weekly meetings with SANCO until treatment
920409:  NJP for violations of UCMJ.
Article 128: Did strike L_ O. J_ on her head with his fist on 920305.
 Article 134: Was disorderly in conduct with L_ O. J_ by verbal altercation on 920305.
Article 117: Did use provoking speeches or gestures toward L_ O. J_ to induce a breach of peace on 920305.
Awarded restriction and extra duties for 14 days. Extra duties susp. 3 mos. Not appealed.
920702:  NAVDRUGLAB [JACKSONVILLE, FL], reported Applicant’s urine sample, received 920626, tested positive for [THC].
920709:  Award suspended on 920409 vacated due to further misconduct.

920710:  NJP for violation of UCMJ.
 Article 112a: Wrongful use of a controlled substance to wit: THC Batch #G2492.
Article 86: Did on or about 1800, 920707 absent himself from appointed place of duty.
Awarded RIR to E-1, 45 das restriction and extra duties for 30 das.

920727:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with the least favorable character of service as under other than honorable conditions.
920727:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
920731:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was Applicant’s recent testing positive for a controlled substance, i.e. THC.

920811:  SJA review determined the case sufficient in law and fact.

920812:  GCMCA [CG, 2d FSSG] 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 19920814 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 contends that he “served his country in war time and did my time.” Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the Marine Corps in order to maintain proper order and discipline. There is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for Marines who abuse illegal drugs. 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.

The Applicant states, “ one childish mistake is no reason to lose all my benefits.” The Veterans Administration determines eligibility for post-service benefits not the Naval 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. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by a retention warning and two nonjudicial punishment proceedings for violations of Articles 86, 112a, 117, 128 and 134 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service. 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 naval service. The NDRB is authorized 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.

Issue 2. The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug or alcohol use. Competent medical authority diagnosed the Applicant as being alcohol and cannabis dependent (in remission) on 19920408 and recommended that he attend Level III treatment and three Alcoholics Anonymous meetings per week in addition to meeting weekly with the SANCO until treatment. The assertion that the Applicant’s record failed to indicate an offer of treatment, thereby indicating an impropriety, does not refute the presumption of regularity in this case. 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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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