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USMC | DRB | 2005_Marine | MD0500187
Original file (MD0500187.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD05-00187

Applicant’s Request
The application for discharge review was received on 20041109. The Applicant requested the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “completion of required service (USMC) EAS.” The Applicant requested a documentary record review. The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118. 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 and reason for 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#l My discharge was inequitable because I was unlawfully assigned to Inspector-Instructor duty after I finished my active duty service on 19941127. Refer to my service-record book (SRB) and the board can confirm that there is no DD form 4/1, DD form 4/2, DD form 4/3 Enlistment/ Reenlistment documents for reenlistment. I should have been assigned to the inactive reserves, however, because of a mistake, I was assigned to an active unit after my original active duty contract expired.

ISSUE#2 My discharge was inequitable because I should not have received an Administration discharge on 19970407. If the board refers to “offences and punishments (1070) of SRB, the last entry states “970306 Viol. Art.112A, UCMJ: on or about 30 Jan 97 did use an illegal drug (THC). Awd red to Lcpl E-3, Forf $598 pay for2 months susp for 6 months at which time unless sooner vacated, the Forf will be remitted W/O further action. Awd at I-I Chicago (LtCol) NJP on 970305". Further action was taken after NJP was concluded on 970305. I was given an administrative discharge for the same offense on 970407, which was not part of the NJP ruling on 970305.

 ISSUE#3 Since my discharge was inequitable for the above reasons I respectfully request my "type of separation" is changed to, "released from active duty", "Character of service" changed to, "Honorable", "reentry code" changed to "RE-1A", “Narrative reason for separation" changed to “Completion of required active service (USMC) EAS", and my "paygrade/rank" reinstated to "E-4/Corporal".

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Applicant’s DD Form 214 (Prior Enlistment)
Applicant’s DD Form 215
15 pages from Applicant’s SRB
Medical documentation (4 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR (J)               900711 - 901127  COG

 Period of Service Under Review :
Date of Enlistment: 901128               Date of Discharge: 970407

 Length of Service (years, months, days):

         Active: 04 09 28
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4 and recalled to active duty
 for 36 months

Education Level: 12                        AFQT: 61

 Highest Rank: Cpl                          MOS: 5811 (Military Policeman)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.7 (1)                       Conduct: 4.0 (1)

 Military Decorations: GCM, LtrApp (3)

Unit/Campaign/Service Awards: NDSM, 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 :

901128:  Enlistment USMC for four years, with a reserve obligation until 980710.

 941127:  Released from active duty USMC, having served 4 years of honorable service and transferred to the Marine Corps Reserves to serve until 980710 (Reserve Obligation Termination Date).
950202:  Applicant transferred to the Individual Ready Reserve (IRR).
960521:  Applicant recalled to active duty for a period of 36 months to commence on 10 June 1996.
960828:  Counseled for deficiencies in performance and conduct. [Being involved in an altercation with entry level students while intoxicated.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960926:  NAVDRUGLAB [Great Lakes, IL] reported Applicant’s urine sample, received 960912, tested positive for THC.

970228:  NAVDRUGLAB [Great Lakes, IL] reported Applicant’s urine sample, received 970130, tested positive for THC.

970305:  NJP for violation of UCMJ, Article 112a: … did use an illegal drug (THC).
 Awd red to LCpl E-3, forf of $598.00 per month for 2 months. Forf susp for 6 mos. Not appealed.
970310:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the Applicant’s “use of an illegal drug, specifically THC.”
970314:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was the Applicant “was previously recommended for separation for the same reason, however, a General Discharge was recommended due to his excellent performance. Meanwhile, subsequent test results … show (the Applicant) to be a repeat offender.”

970319:  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.

970326:  SJA review determined the case sufficient in law and fact.

970326:  GCMCA [Commander, Marine Forces Reserve] 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 19970407 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).

Issues 1 & 2: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. In the Applicant’s case, the Board discovered no impropriety or inequity and considers his discharge proper and equitable . While it is true the Applicant did complete his initial four years of active duty on 19941127, he was transferred to the Reserves to serve until his Reserve Obligation Termination Date of 19980710. However, the Applicant incurred an additional 36 months of active duty upon his acceptance of his recall to active duty orders, and subject to the UCMJ. A service characterization of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a member of the United States Marine Corps. The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives regulating good order and discipline in the naval service, and demonstrated he was unsuitable for further service. It must be noted most Marines serve honorably; thereby, earning their honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due. An upgrade to honorable would be inappropriate. Relief denied.

Issue 3: Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. In response to the Applicant's request for having his pay grade and rank being reinstated to E-4, corporal, the NDRB has no authority to grant this request . The service records the Board reviewed showed no mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the Applicant’s discharge was awarded. These issues do not serve to provide a foundation upon which the Board can grant relief.
 
 T here 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 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. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. 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 additional documentation to support any claims of post-service accomplishments 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 P1900.16E), 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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