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NAVY | DRB | 2004 Marine | MD04-01474
Original file (MD04-01474.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD04-01474

Applicant’s Request
The application for discharge review was received on 20040924. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. 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 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:
“ June 15, 2004

 To Whom It May Concern:
I, M_ W_ R_ (Applicant), was discharged from the United States Marine Corps under other than honorable circumstances on December 11, 2003. I hereby sincerely request that my discharge be changes to a general under honorable conditions.
I truly regret the mistakes I made during my service in the Marine Corps. It was an exceptional experience in my life. It really helped me to get my life on track. I do not regret joining the Marine Corps, I only regret not being able fulfill my commitment by finishing my contract honorably. I truly enjoyed my time and wouldn’t trade it in for anything. Since my discharge I have been working hard to be an upstanding citizen. I am working full-time in a Nursing Home as a Social Worker and I enjoy serving the elderly community. In August 2004 I will be attending Augusta State University in the evenings to earn my bachelor’s degree. In May 2004 I was married and in July 2004 we will be having our first child.
It would mean so much to me and my family if my discharge would be upgraded. This would allow me to move forward with my life and provide a better one for my family.
I thank you very much in advance for the consideration. If you have any further questions, please feel free to contact me.

 Sincerely,
M_ W_ R_ ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of the Applicant’s DD Form 214
Letter of character reference from D_ W_, dtd June 16, 2004
 Letter from R_ R_, dtd September 16, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR (J)               011227 - 020211  COG
Period of Service Under Review :
Date of Enlistment: 020212               Date of Discharge: 031211
Length of Service (years, months, days):

          Active: 01 09 29
          Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 89

 Highest Rank: LCPL                MOS: 3043
Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.8 (4)                       Conduct: 3.7 (4)

 Military Decorations: None
Unit/Campaign/Service Awards: REB

 Days of Unauthorized Absence: 8
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 :

011215:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
030529:  Applicant to UA (AWOL) at 0801, 030529.
030606:  Applicant from UA (AWOL) at 0730, 0306006.
 030609:  NJP for violation of UCMJ, Article 86 (1 spec):
 Specification 1: In that Lance Corporal M_ W. R_, did, on or about, 1800 27 May 2003, without authority absent himself from his appointed place of duty at which time he was required to be to wit: Headquarters Batter, 2d Battalion, 10 th Marines and did remain so absent until on or about 0800 on 6 June2003.
 Awarded: Forfeiture of $336 pay per month for 1 month, restricted to the limits of place of mess, billeting, duty and worship and the most direct route to and from duty for 14 days and 14 days EPD to run concurrently. Not appealed.
030625:  NAVDRUGLAB JACKSONVILLE FL reported Applicant’s urine sample, received 030610, tested positive for THC.
030630:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NAVDRUGLAB message 251726Z Jun 03.
030702:  Applicant provided with statement of understanding for assistance for a substance abuse problem after discharge at a Veterans Administration Medical Center.
030703:  SACO Evaluation Report. Applicant evaluated on 2 Jul 03 as a result of a command referral. No diagnosis.
         Recommendations: IMPACT to be scheduled by the BN SACO. Weekly visits with the Unit SACO until treatment. Individual should be held strictly accountable for their actions. Per the references (a), individual may be processed for administrative separation for illicit substance use.
030908:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 112a (1 Spec).
          Specification 1: In that SNM did on or about 20030627, wrongfully use a controlled substance to wit: THC.
          Finding: to Charge I and the specifications thereunder, guilty.
          Sentence: Reduction to E-1, forfeiture of 767.00 per month for 1 month.
          CA action 030908: Sentence approved and ordered executed.
031007:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was NAVDRUGLAB message 251726Z Jun 03. Commanding officer’s comments: “ A review of Private R_’s service record and the Battalion Commander’s assessment depicts a Marine who has a flagrant disregard for our Marine Corps values and the rules that govern good order and discipline. On 9 June 2003 Private R_ received battery level non-judicial punishment for violation of Article 86, unauthorized Absence. Private R_ then tested positive for THC on 10 June 2003. Following his testing positive Private R_ ‘s conduct became worse resulting in his going UA 6 different occasions before his court-martial. He was placed in pre-trial confinement pending his court-martial on 8 September 2003 for violation Article 112a, wrongful use of a controlled substance. Pvt R_ has clearly demonstrated that he has little to no regard for the rules and regulations or intentions of changing his behavior.”
031114:  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.
031122:  SJA review determined the case sufficient in law and fact.

 031124:  GCMCA, Commander 2d Marine Division, 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 20031211 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).
The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The applicant provided two letters of character reference as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Therefore, no relief will be granted.

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. Separation under these conditions generally results in characterization of service under other than honorable conditions. 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 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 P1900.16F), 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 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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