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USMC | DRB | 2005_Marine | MD0500266
Original file (MD0500266.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00266

Applicant’s Request
The application for discharge review was received on 20041115. 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 the application, the Applicant obtained representation from the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050511. 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. “I am requesting AN upgrade on My Discharge For The Purpose of using the V.A. Hospital.”

 Issues submitted by Applicant’s representative, DISABLED AMERICAN VETERANS:

 2. “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Under Other Than Honorable Conditions Discharge to that of Honorable.

The FSM served on active service from May 23, 1995 to June 5, 1997at which time he was discharged due to Misconduct – drug abuse.

The FSM ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

Under the premises of equitable relief, we believe the Board can change the discharge to reflect a General discharge we leave that to a determination by the Board, to allow for him to receive medical care at the local VA Medical Center.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2 Copy)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                950414 - 950522  COG

 Period of Service Under Review :
Date of Enlistment: 950523               Date of Discharge: 970605

 Length of Service (years, months, days):

         Active: 02 00 13
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 39

 Highest Rank: LCpl                         MOS: 0811

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3(6)                        Conduct: 4.1(10)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDR, SSDR, AFSM

 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 :

950412:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
960809:  Counseled this date concerning the following deficiencies: lack of accountability of military gear; specifically on 960705, Applicant failed to keep proper accountability of his bayonet while in a foreign country. PFC P_'s (Applicant's) bayonet was lost for a period of 24 hours. Necessary corrective actions explained, sources of assistance identified, and disciplinary warning issued.
970324:  Applicant is eligible but not recommended for promotion to corporal for the month of April because of weight control.

970326:  [Late entry] Applicant is eligible but not recommended for promotion to corporal for the month of March because of weight control.
970408:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 970310, tested positive for THC.

970428:  Applicant signed a statement of understanding of treatment for substance abuse at a Veterans Administration Medical Center. Applicant understood that, should he require assistance for a substance abuse problem after his discharge, he needs to contact his local VAMC. Address of his local VAMC was provided in statement.

 970508:  NJP for violation of UCMJ, Article 112a (1 spec):
 Specification: In that SNM did, on or about 970408, test positive for THC.
Awarded forfeiture of $505.00 per month for 2 months, restriction and extra duties for 45 days to run concurrent w/o suspension from duty, and reduction to E-2. Not appealed.
970508:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.

970508:  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.

970514:  Commanding Officer, 3d Battalion, 10th Marine Regiment recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was the Applicant's nonjudicial punishment of 970508 for wrongful use of marijuana. Commanding Officer's comments (verbatim): Based on enclosures (1) through (8), it is my opinion that a discharge under other than honorable conditions is warranted. I have considered the overall recommendations of the respondent's chain-of-command in enclosures (3), (4), and (5). I feel strongly that retention of the respondent will adversely effect the [remainder of statement unreadable].

970521:  SJA review determined the case sufficient in law and fact.

970522:  GCMCA, Commanding General, 2d Marine Division, U.S. Marine Corps Forces, Atlantic 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 19970605 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 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. Relief on this basis is not possible.

Certain serious offenses, however isolated, warrant separation from the Marine Corps in order to maintain proper order and discipline. 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. 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 considers his discharge proper and equitable. Furthermore, after reviewing the Applicant's entire service record, the Board found that the characterization of the Applicant's discharge as under other than honorable conditions was equitable and consistent with the characterization of discharge given others in similar situations and with similar records of service. Relief on this basis is not warranted.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 any documentation for the Board to consider. Relief on this basis is currently not possible.

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 P1900.16E), 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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