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USMC | DRB | 2005_Marine | MD0500273
Original file (MD0500273.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD05-00273

Applicant’s Request
The application for discharge review was received on 20041129. 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 20050316. 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 (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

 Applicant’s issues, as stated:

“1. I have two character statements from supervisors that said that I had learned my lesson and that they would serve with me, an above average and excellent Marine.”

“2. I could have left the military with a medical discharge but stayed the course.”

“3. I fought to stay in the military by requesting a hearing.”

“4. The current Administration is different from the one I served under. Marines today would not be separated as easily. The downsizing of the military when I was a Marine should not be a Valid reason for a lifetime label as Other Than Honorable.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement of Character from SSgt R_ W. B_ dtd 930830 (2 pages)
Statement of Character from 2ndLt A_ S. Z_ dtd 930830 (2 pages)
Reference Letter from SSgt R.E. V_ dtd 930830
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                920522 - 920602  COG

 Period of Service Under Review :
Date of Enlistment: 920603               Date of Discharge: 931028

 Length of Service (years, months, days):

         Active: 01 04 26
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 84

 Highest Rank: PFC                          MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.4 (3)                       Conduct: 3.4 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: REB, NDSM

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

920520:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
930108:  Medical evaluation: Fracture of left fibia, casted 7 weeks ago. Slow healing. Return in four weeks.

930607:  NJP for violation of UCMJ, Article 112a: On or between 930501 to 930520, did at an unknown location wrongfully use a controlled substance, to wit: SNM’s urinalysis taken on 930520 did return positive for THC.
 Awarded forfeiture of $407.00 pay per month for 2 months, restriction and extra duties for 30 days, reduction to E-1. Not appealed.
930614:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with the least favorable characterization of service as under other than honorable conditions.
930614:  Applicant advised of rights and having elected not to consult 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.

930701:  Medical evaluation for drug and alcohol abuse found the Applicant to be not drug or alcohol dependent.
930702:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was your nonjudicial punishment evidencing your abuse of a controlled substance, specifically THC.

930831:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

930927:  SJA review determined the case sufficient in law and fact.

930928:  GCMCA [Commander, 1 st 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 19931028 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, 3. C ertain serious offenses warrant separation from the naval service 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. 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 Board found that the character statements provided on behalf of the Applicant by his superiors at the time of his discharge and the Applicant’s desire to stay in the Marine Corps did not mitigate his misconduct or demonstrate that he was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issue 2. The Applicant contends that he could “have left the military with a medical discharge.” SECNAVINST 1850.4C indicates that separations for misconduct take precedence over separations for other potential reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, while the Applicant did sustain a tibia fracture in 1992, there is no evidence that he was even considered a candidate for a PEB. Relief on this basis would be inappropriate.

Issue 4. Under current regulations and regulations in force at the time of the Applicant’s discharge, 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 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.

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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