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USMC | DRB | 2005_Marine | MD0500695
Original file (MD0500695.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00695

Applicant’s Request
The application for discharge review was received on 20050309. 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, Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050819. 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:

“I would like to use the MGI Bill to go to school”

 The American Legion submitted no issues for consideration.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Certificate of Good Conduct, dated December 30, 1999
Letter to Applicant from Commanding General, dated July 10, 1998
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                960622 - 961229  COG

 Period of Service Under Review :
Date of Enlistment: 961230               Date of Discharge: 001108

 Length of Service (years, months, days):

         Active: 03 10 09                  (Does not exclude lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 35

 Highest Rank: LCpl                         MOS: 3531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (11)                      Conduct: 3.9 (11)

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, SSDR, MUC (2), MM (3), LoA, CoC, RMB

 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 :

960618:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

9704XX:  Applicant participated in Level II treatment as a result of self referral. [Extracted from medical record entry dtd 990820]
990526:  Applicant informed eligible but not recommended for promotion to Corporal for the period of Apr-June 1999 because of lack of integrity.

990820:  Applicant diagnosed alcohol dependant.

9909XX:  Applicant completed Level III ETOH rehabilitation at NARED-NHCP.

990928:  Applicant informed eligible but not recommended for promotion to Corporal for the promotion period Jul-Sep 1999 because of Level 3.

000501:  Applicant evaluated not fit for duty due to alcohol intoxication.

000218:  Applicant informed eligible but not recommended for promotion to Corporal for the period of Oct-Dec because of no judgment.

 000524:  NJP for violation of UCMJ, Article 91 (3 specs):
 Specification 1: Disrespectful towards MSgt R_ on or about 2200, 000430, by saying “F_ MSgt R_, I can do what I want.”
Specification 2: Disrespectful towards Cpl K_ on or about 2200, 000430, by saying “Go f_ yourself.”
Specification 3: Disrespectful towards Sgt R_ on 2100, 000513, by saying “Shut the f_ up.”
Violation of UCMJ, Article 117:
Specification: Wrongfully use provoking gestures on 2100, 000513, by pointing his finger in the face of Sgt R_.
Awarded forfeiture of $229.00 pay for 7 days, restriction and extra duties for 14 days. Forfeiture suspended for 4 months. Not appealed.
000724:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 000717, tested positive for THC.

000727:  In an NCIS statement, the Applicant admits to illegal drug use in August 1998, November 1998, July 1999 and June 2000.

000801:  Substance Abuse Evaluation: Applicant failed treatment. Recommend administrative separation for illegal drug use.

000925:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 112A (3 specs):
         Specification 1: Wrongful use of marijuana on or about 000818.
         Specification 2: Wrongful use of marijuana on or about July 2000.
         Specification 3: Wrongful use of marijuana on or about June 2000 and July 2000.
          Finding: to Charge I and the specifications 2 and 3 thereunder, guilty. Charge I and specification 1 thereunder, not guilty.
          Sentence: Forfeiture of $670.00, confinement for 30 days, reduced to E-1.
         CA action 000929: Sentence approved and ordered executed.
001002:  Applicant notified of intended recommendation for under other than honorable conditions discharge by reason of misconduct due to drug abuse. The least favorable characterization of service, which you may receive, is under other than honorable conditions.
001006:  Applicant advised of rights and having consulted 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.

001006:  Applicant acknowledged availability of alcohol or drug rehabilitation treatment. Applicant knowingly refused all medical treatment.

001009:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was illegal use of marijuana as adjudicated by a summary court-martial on 000925.

001025:  SJA review determined the request for administrative discharge of Applicant legally sufficient.

001102:  GCMCA, 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 20001108 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).

 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 nonjudicial punishment proceedings and a summary court-martial conviction for violations of Articles 91, 112a and 117 of the UCMJ. In addition to the Applicant’s adjudicated infractions, the Applicant admitted, in a signed statement, that he used illegal drugs on four occasions during his enlistment. The Applicant was treated for his substance abuse addictions at Level II and Level III care in 1997 and 1999 respectively and continued to abuse legal drugs, ultimately testing positive for THC in July 2000. 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 denied.

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. Relief on this basis is not warranted.

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. Relief on this basis is not warranted.

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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