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USMC | DRB | 2005_Marine | MD0500516
Original file (MD0500516.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00516

Applicant’s Request
The application for discharge review was received on 20050131. 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 by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050629. 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 of my Under Other Than Honorable Conditions discharge to an Honorable Discharge because I do not believe the current status is a fair reflection of the character of my active duty service nor my character in general. I believe the OTH is inequitable because I never tested positive for steroids and was never offered any rehabilitation. After I was discharged I continued my contacts/friendships with some of the active duty Marines stationed at MCAS Yuma, AZ who advised me Marines being busted for marijuana were being allowed to remain in the Marine Corps. I am aware of other Marines charged with DUI’s that were retained. They had actually put other Marine’s and civilians in danger. Some have had multiple offences but were still allowed to serve. I admit that I had two prior minor offenses regarding unauthorized person in BEQ. My first offense was truly a mistake of immaturity and youthful bad judgement. The second offense occured just after I had been diagnosed with TB. I was extremely ill. My girlfriend ended up staying after hours to take care of me. I am not saying we didn’t break the rule only that there were mitigating circumstances. I successfully completed several schools and received several letters of recommendation. I was a proud and good Marine. I believe that a fair and just character for my discharge should be Honorable to truly reflect the character of my service.”

 Additional issues submitted by Applicant’s representative (American Legion):

2. “Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), as it pertains to post-service conduct, in assessing the merits of this application.
_______________________________________________________________________
In accordance with Title 32, CFR, section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition.

Review of the service records reveal that this former member maintained satisfactory Proficiency/Conduct markings of 4.2/3.7 and earned an LOA. He was awarded NJP on 980129 for VUCMJ, Article 92; NJP on 980129 for VUCMJ, Articles 80, 112a and NJP on 991209 for VUCMJ, Article 92. Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by MARCORSEPMAN, Paragraph 6210.5.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because it is too harsh for his offenses and inconsistent with punishment awarded other Marines. He has submitted 4 pages of additional documentation attesting to his good in-service and post-service character for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553, and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Five pages from Applicant’s service (completion of courses)
Character reference, dated July 20, 2004
Character statement, dated May 17, 2004
Letter of explanation, dated July 12, 2000
Letter of appreciation, dated February 20, 1999
Letter of recommendation, dated March 18, 2002
Letter of recommendation, dated May 6, 2002
Gainesville Police Department public record request, back ground check, dated February 9, 2004
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                961026 - 970720  COG

 Period of Service Under Review :
Date of Enlistment: 970721               Date of Discharge: 000411

 Length of Service (years, months, days):

         Active: 02 08 21
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 46

 Highest Rank: LCpl                         MOS: 6672

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (8)                       Conduct: 3.7 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: LoA

 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 :

961025:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
980129:  NJP for violation of UCMJ, Article 92:
 Specification: Violation of Marine Aviation Training Support Group Order 11101.1K of 961016 by having an unauthorized visitor in your room after 2200, 980120.
Awarded forfeiture of $250.00 per month for 2 months, restriction and extra duties for 30 days, reduction to E-1. Forfeiture of $150.00 for 2 months and reduction suspended for 3 months. Not appealed.
991028:  NJP for violation of UCMJ, Article 80:
 Specification: Attempted to use a controlled substance (Testosterone/steroids) when he handed another Marine a white box to show proof that he had access to a controlled substance on 990809.
Violation of UCMJ, Article 112a:
Specification: Wrongfully possess and introduce Testosterone/steroids in a white box with Spanish writing which indicated a controlled substance aboard MCAS Yuma to three LCpl’s.
Awarded forfeiture of $200.00 per month for 2 months, restriction and extra duties for 30 days, reduction to E-2. Not appealed.
991130:  Counseled for deficiencies in performance and conduct. [My illegal drug involvement, Testosterone (steroids) through a Criminal Investigation Division Investigation that I wrongfully possessed and introduced a controlled substance aboard MCAS Yuma, AZ to several Marines indicating proof that I had access to a controlled substance.] Necessary corrective actions explained.
991209:  NJP for violation of UCMJ, Article 92:
 Specification: Failed to obey SqdnO 11101 by having an unauthorized guest in BEQ at 0015, 991124.
Awarded forfeiture of $479.00 per month for 2 months, restriction for 30 days, reduction to E-1. Forfeiture in excess of $100.00 for 2 months is suspended for 6 months. Not appealed.
000110:  OIC’s recommendation: (Applicant) has been a below average performer in the Consumable Management Division. His basic Corps Values of Honor, Courage, and Commitment are continuously in question…. This Marine has been counseled on numerous occasions of being UA and has been counseled on the responsibility concerning an abandoned car for which he continued to neglect. Assessment of Marines character: (Applicant) had shown a lack of pride concerning his appearance, the appearance of his barracks room, his initiative, dependability, enthusiasm, integrity, judgement and knowledge. This Marine does not display the necessary tools required to succeed in the Marine Corps. Recommendation: General discharge under honorable conditions.
000119:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000322:  Applicant advised of rights and having consulted with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

000323:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse. The least favorable characterization of service possible is a under other than honorable conditions.
000329:  SJA review: Due to an administrative oversight at the unit, notification of separation in the case of Pvt A_ S. L_ (Applicant), dated 000323 erroneously listed paragraphs 6210.3 (pattern of misconduct) and 6210.5 (drug abuse) as the proposed bases for separation. The only basis for separation is 6210.5 (drug abuse). This has been pen changed. The respondents acknowledgement did not contain this typographical error.
 The fact that the notification erroneously misidentified the basis for separation and had to be pen changed does not render the legal proceedings insufficient. The respondent acknowledged and exercised his full rights knowing he was being recommended for separation for drug abuse and that the least favorable characterization, which he could receive, was under other than honorable.
In consideration of the foregoing, the request to discharge the subject named Marine has been reviewed and is legally sufficient.
000329:  Commanding General, 3d Marine Aircraft Wing 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 20000411 under other than honorable conditions for misconduct due to drug abuse (A). 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 (B and C).

Issue 1. The Applicant contends that because he never tested positive his discharge characterization is inequitable. The Applicant’s possession of testosterone/steroids is considered “wrongful use of a controlled substance” punishable under the UCMJ, Article 112a. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use. The Applicant’s allegations, that he was denied assistance and counseling for his personal problems, are not supported in the record and do not refute the presumption of regularity in this case. The NRDB found that the Applicant’s service was equitably characterized. Relief denied.

The Applicant contends that he is aware of “Marines being busted for marijuana… being allowed to stay in.” There is credible evidence in the record that the Applicant used illegal drugs. Despite a servicemember’s prior record of service, mandatory processing for separation is required for Marines who abuse illegal drugs. 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.

Issue 2. The Applicant contends through council that the applicant maintained satisfactory markings and that the punishment is “too harsh.” An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by three nonjudicial punishment proceedings for violations of Articles 80, 92 and 112a of the UCMJ. Additionally, the Applicant’s conduct average is below the minimum standard required for a characterization of honorable. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

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 sufficient documentation for the Board to consider. 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. 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 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 .

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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