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USMC | DRB | 2005_Marine | MD0500638
Original file (MD0500638.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00638

Applicant’s Request
The application for discharge review was received on 20050228. 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 20050608. 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. “Injuries which could be helped by VA. Also benefits unable to attain without Better discharge
I was young & stupid. Living in Hawaii my EAS coming soon. I made a bad choice of smoking marijuana which has haunted my Life ever since. I if possible I would appreciate a better discharge. I was a perfect Marine. I served a full term proud. I feel I was let down by one ignorant mistake.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None were submitted.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                930428            COG

 Period of Service Under Review :
Date of Enlistment: 930429               Date of Discharge: 970428

 Length of Service (years, months, days):

         Active: 04 00 00
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 67

 Highest Rank: LCpl                         MOS: 1371

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (8)                       Conduct: 4.1 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: REB, NDSM, LoA, GCM

 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 :

930408:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs. Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver approved.



931210:  Counseled for deficiencies in performance and conduct. [Alcohol related incident, specifically, underage drinking, lack of judgment. I was seen by a Substance Abuse Counselor and assigned to Level I treatment.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960223:  Counseled for deficiencies in performance and conduct. [Failure to keep the Medical Dept. of CAC and his chain of command informed of his medical status on 960220.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960819:  Applicant notified that he is eligible but not recommended for promotion to Cpl for the Sept promotion month due to lack of judgment and maturity.

961115:  Applicant notified that he is eligible but not recommended for promotion to Cpl for the Dec promotion month due to lack of responsibility, lack of discipline, lack of initiative.
970409:  NJP for violation of UCMJ, Article 112a: On or about 24 Feb 97, test positive for THC on Naval Drug Lab message 062341Z Mar 97.
 Awarded forfeiture of $505.00 per month for 2 months (total forf $1010.00), restriction and extra duties for 45 days, reduction to E-2. Restriction and extra duty suspended for 6 months. Not appealed.
970409:  Counseled for deficiencies in performance and conduct. [Illegal use of marijuana which violates Article 112a of the UCMJ. As a result of your misconduct, Regt NP was held on 970409.] Source of assistance provided.
970409:  Substance Abuse Counseling Center evaluation: Applicant found to be a drug abuser. Recommend discharge. Attend one NA meeting a week and visit SACO once a week until discharge.
970409:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse. The least favorable characterization of service which you may receive is an under other than honorable conditions discharge. Commanding Officer is recommending that the Applicant receive an under other than honorable discharge.
970410:  Applicant briefed on VA benefits, as they pertain to drug treatment. Applicant provided with address of nearest Veterans Administration Hospital to his home of record.
970410:  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

970410:  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 wrongful use of marijuana.

970416:  SJA review determined the case sufficient in law and fact.

970418:  GCMCA , Commanding General, Marine Corps Base Hawaii, 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 19970428 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

There is credible evidence in the record that the Applicant used illegal drugs. The Applicant contends that he used illegal drugs while in the Marine Corps because he was “young and stupid" and that he made “one ignorant mistake.” While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. 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 U.S. 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 2 retention warnings and a nonjudicial punishment proceedings for violation of 112a (wrongful use of controlled substances) of the UCMJ. The nonjudicial punishment for illegal drug use substantiates the misconduct for which he was separated. 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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.




In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, the Applicant stated that he served a “full term”. On 19980418 the GCMCA directed that the Applicant was to be discharged under other than honorable conditions within ten days. The Applicant was discharged on 19980428, within the ten day period. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. 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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