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NAVY | DRB | 2004 Marine | MD04-01443
Original file (MD04-01443.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01443

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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050324. 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:

“ISSUE 1. SEPARATION DUE TO MISCONDUCT

ISSUE 2. UPGRADE TO HONORABLE (NEED DD-215)”

3. “Under current standards, I would not receive the type of discharge I did.

My conduct and efficiency ratings/behavior and proficiency marks were mostly pretty good.

My record of promotions showed I was generally a good servicemember.

I have been a good citizen since discharge.

My record of AWOL/UA indicates only minor or isolated offenses.

My ability to serve was impaired by my youth and immaturity.

Medical or physical problems I had impaired my ability to serve.

The punishment I got was too severe compared with today’s standards.

I tried to serve and wanted to, but just couldn’t or wasn’t able to.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, dated March 10, 2004
Character reference, dated April 24, 2004
Character reference, dated May 4, 2004
Character reference, dated March 27, 2004
Character reference, dated March 24, 2004
Character reference, dated March 30, 2004
Applicant’s DD Form 215 (2)
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                010519 - 010729  COG

 Period of Service Under Review :
Date of Enlistment: 010730               Date of Discharge: 020621

 Length of Service (years, months, days):

         Active: 00 10 22 [Does not exclude lost time]
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 34

 Highest Rank: PFC                          MOS: 9971

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                          Conduct: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: SRB

 Days of Unauthorized Absence: 8

*No marks found in service record

 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 :

010519:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
020302:  Applicant to unauthorized absence 0001, 020302.

020310:  Applicant from unauthorized absence 1600, 020310 (8 days/surrendered).

 020314:  NJP for violation of UCMJ, Article 86:
 Specification: Failed to report to his appointed place of duty on 0001, 020302 to 1600, 020310.
Awarded forfeiture of $289.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
020328:  Separation physical: Applicant found qualified for separation.

020412:  NJP for violation of UCMJ, Article 112a:
 Specification: Wrongful use of a controlled substance on 020308, to wit: THC.
Awarded forfeiture of $552.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt. Not appealed.
020503:  Applicant to voluntary leave awaiting administrative separation.

 020515:  SJA review determined the case sufficient in law and fact.

020516:  GCMCA [Commanding General, Marine Corps Base, Camp Pendleton] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Partial discharge package

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020621 under other than honorable conditions for misconduct due to drug abuse (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1. “Separation due to misconduct” is not a decisional issue for consideration by the Board.

Issues 2-3. The Applicant received nonjudicial punishment for eight days of unauthorized absence and illegal drug use. Drug abuse warranted processing for separation. Separation under these conditions generally results in characterization of service under other than honorable conditions. A Marine processed for administrative separation under current standards for drug abuse would most likely receive the same characterization of service as the Applicant. The evidence of record, to include the statements submitted by the Applicant, 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 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 occurred 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. However, 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge. 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 P1900.16F), effective 01 September 2001 until Present.

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

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

D. 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.

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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