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USMC | DRB | 2005_Marine | MD0500613
Original file (MD0500613.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00613

Applicant’s Request
The application for discharge review was received on 20050216. 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 proud to be a Marine and the highest honor is to of serve for my country. I come from a family of Marines who have served in different Wars, dating back to World War II, Guadacanal. I have completed drug rehab treatment and feel I deserve an upgrade on my discharge.”
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.

The Board’s attention is invited to Blocks 24 and 28 of DD Form 214. Block 24 should read Under Other Than Honorable Conditions vice Other Than Honorable and Block 28 should read misconduct vice drug abuse.

Review of the available service records reveal that this former member maintained satisfactory Proficiency/Conduct markings of 4.3/4.3 and earned the REB (2), SSDR, NM, KCM (3), NUCR, MUCR and HSM. He was awarded NJP on 990129 for VUCMJ, Articles 92, 128; NJP on 990801 for VUCMJ, Articles 91, 128 and NJP on 0005518 for VUCMJ, Article 112a. Medical records show that he had a psychological evaluation on 000504 that diagnosed him as drug/alcohol depend. On 000807, 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 he has overcome the drug/alcohol problem that he had during service by completing a treatment rehabilitation program. He has not submitted any additional documentation 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:
The Applicant submitted no documents for consideration

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                980114 - 980119  COG

 Period of Service Under Review :
Date of Enlistment: 980120               Date of Discharge: 000807

 Length of Service (years, months, days):

         Active: 02 06 18
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 49

 Highest Rank: LCpl                         MOS: 0341

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (2)                       Conduct: 4.3 (2)

 Military Decorations: CAR

 Unit/Campaign/Service Awards: REB(2), SSDR, NM, KCM(3), NUC, MUCR, HSM,

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 :

980106:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

990129:  NJP for violation of UCMJ, Article 92: On or about 990128, SNM did fail to obey a MCO by failing to turn his personal K-Bar into the armory aboard the USS Kearsarge; violation of UCMJ, Article 128: On or about 0722, 990128, SNM, did assault PFC R____ by unsheathing his K-Bar and saying “I am going to kill you” or words to that effect.
 Awarded forfeiture of $479.00 pay per month for 2 months, reduction to E-1, confinement to CCU for 30 days. Not appealed.
990420:  Counseled for deficiencies in performance and conduct. [Misconduct; specifically fighting with fellow Marine. During MEUEX, you assaulted a fellow Marine with a weapon and received NJP. Again, on or about 990409 after consuming approximately 12 beers, you became very disrespectful and used provoking language toward Marines who were attempting quiet you down, in order to keep you out of trouble. Later that same evening, you were involved in a verbal confrontation with another Marine, which resulted in a fight.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990811:  NJP for violation of UCMJ, Article 91: SNM did fail to obey a lawful order given by MAA1 L____ to get off the accommodation ladder; violation of UCMJ, Article 128: On or about 0145, 990810, SNM did assault MAA1 L____ by striking him in the back of the head with his feet.
 Awarded forfeiture of $251.00 pay per month for 1 month, restriction and extra duties for 14 days. Not appealed.
000425:  NAVDRUGLAB Jacksonville, FL, reported Applicant’s urine sample, received 000420, tested positive for THC.

000427:  Psychiatric Evaluation requested due to profound dysphoria, anhedonia, nero-vegetative symptoms and positive urinalysis for THC.
Resulting psychiatric assessment:
1.)      Polysubstance abuse/dependence
2.)      Depression NOS
3.)      ADHD
4.)      Fraudulent enlistment
000502:  Counseled for deficiencies in performance and conduct. [Illegal usage of a controlled substance, to wit: THC.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000502:  Applicant notified of intended recommendation for discharge with the least favorable characterization under other than honorable conditions by reason of misconduct due to drug abuse.
000502:  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.

000504:  Clinical Psychologist evaluation indicates drug abuse and alcohol dependence. Individual found psychologically fit for full duty and return to same, recommended SNM be processed for Administrative Separation per MCO P1900.16, be treated at the ARD Norfolk, VA, continue attending continuing care at ATF and follow up with doctors as scheduled.

000518:  NJP for violation of UCMJ, Article 112a: On or about 000420, SNM did test positive for a controlled substance, to wit: THC.
 Awarded forfeiture of $563.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-2. Not appealed.
000605:  Applicant refused treatment for alcohol/substance abuse.

000606:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was PFC W___’s illegal drug use which resulted in him testing positive for THC, a controlled substance, on or about 000420 on NAVDRULAB, Jacksonville, FL msg dtg 252202 Apr 00.

000726:  SJA review determined the case sufficient in law and fact.

000731:  Commanding General, 2d Marine Division, II Marine Expeditionary Force 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 20000807 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. 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.

When the service of a member of the Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. 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 a retention warning and three nonjudicial punishment proceedings for violations of Articles 91, 92, 112a and 128 of the UCMJ. 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, to include certification of rehabilitation, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided 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. 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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