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USMC | DRB | 2005_Marine | MD0500662
Original file (MD0500662.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD05-00662

Applicant’s Request
The application for discharge review was received on 20050304. The Applicant requests the Discharge 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 designate a representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the American Legion.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051102. 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 by reason of misconduct due to drug abuse.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“My discharge was inequitable because it was based on an isolated incident in over 28 months of service with no other adverse action.”

 The Applicant’s representative, American Legion, submitted no issues for consideration.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1 and 4)
Letter of Recommendation from R. A. J_ Jr., Gunnery Sergeant, dtd August 12, 2004
Letter of Recommendation from J. R. R_, First Sergeant, dtd July 9, 2004
Letter of Recommendation from G. K. J_, Captain, dtd August 1, 2004
Certificate of completion, dtd June 17, 2004
Certificate of completion, dtd May 13, 2004
Certificate of appreciation for participation in Ground DARPA Challenge from March 8–14, 2004
Letter to Applicant from Director, DARPA, dtd May 7, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20020305 - 20020318      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20020319             Date of Discharge: 20040812

 Length of Service (years, months, days):

 Active: 02 04 24
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 19

 Years Contracted: 4

 Education Level: 12                                 AFQT: 63

 Highest Rank: LCpl                                  MOS: 0121

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (1)*                               Conduct: 3.0 (1)*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Sea Service Deployment Ribbon, National Defense Service Medal, Certificate of Commendation, Rifle Sharp Shooter Badge

*Extracted from Unit Punishment Book entry dated 031231.


 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 :

020226:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

031231:  Battalion NJP for violation of UCMJ, Article 112a: In that LCpl G_ (Applicant) did, at Camp Pendleton, CA, test positive for Cocaine 169 NG/ML and THC 23 NG/ML as reported by the Naval Drug Lab San Diego of sample test DTG 092305Z Dec 03.
         Award: Forfeiture of $645 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Not appealed.

040108:  Counseling: Advised of deficiencies in performance and conduct (Illegal drug related involvement on 23 December 2003, specifically cocaine usage identified through urinalysis confirmed by NAVDRUGLAB MSG 092305Z Dec 03.), necessary corrective actions explained, and advised being processed for administrative discharge action.
040108:  Counseling: Advised of Battalion Commander’s recommendation of a RE-4B reentry code.
040728:  SJA review determined the case sufficient in law and fact.

040729:  Commander, Marine Corps Base, Camp Pendleton, CA directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.


Service Record Book contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040812 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions. 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). The Board presumed regularity in the conduct of governmental affairs (D).

 The Applicant states his discharge was based on one isolated incident in “over 28 months.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, 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. 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. 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 consider his discharge proper and equitable. 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 post-service 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. Representation at a personal appearance hearing is recommended but not required.



Pertinent Regulation/Law (at time of discharge)

A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective
01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.

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.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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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