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USMC | DRB | 2005_Marine | MD0500698
Original file (MD0500698.rtf) Auto-classification: Denied


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

ex-Cpl, USMC
Docket No. MD05-00698

Applicant’s Request
The application for discharge review was received on 20050316. 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 20050713. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant ’ s service. The Board ’ s vote was unanimous that the character of the discharge shall change and that the narrative reason for discharge shall not change. The discharge shall change to: GENERAL (UNDER 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. “REVIEW JUST ON THE MERITS OF FIRST 4 YEARS OR JUST ISSUE FIRST DD214 SO I CAN RECEIVE MY MEDICAL BENEFITS AT THE VETERANS HOSPITAL IN CLAKRSBURG, W.V.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None were submitted by the Applicant.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              911223 - 951108  HON
         Inactive: USMCR(J)                911001 - 911222  COG

 Period of Service Under Review :
Date of Enlistment: 951109               Date of Discharge: 970429

 Length of Service (years, months, days):

         Active: 01 05 21
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

 Education Level: 10 GED           AFQT: 52

 Highest Rank: Sgt                          MOS: 0861/9814/5711

 Final Enlisted Performance Evaluation Averages : Enlisted performance reports were available to the Board for review. There were no proficiency/conduct marks for the period 19970131-19970429.

 Military Decorations: None

 Unit/Campaign/Service Awards: RSB, PMB, NDSM, MM, GCM, SSDR, MM (2), 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 :

961118:  Counseled for deficiencies in performance and conduct. [Lack of leadership, judgment and maturity. At this present time you do not exercise the leadership expected of a Marine of your present rank in that your language, actions and attitude toward Marines of lesser grade is not conducive to good order. To tell a Marine that “he will do what you tell him to do because you own him” is leadership by intimidation, and is nothing short of a bully tactic. During the preparation for the recent motor transport inspection, you were told by Lt. O_ that you must personally work on your vehicle so that you would know it’s discrepancies yet, you were seen everywhere but the motor pool doing nothing in particular. When you were in the motor pool you did nothing to contribute to the mission. Recently, you were at the division field meet and did not show back up to work until 1330. Your chain of command bent over backwards to help you take care of your housing problem yet you constantly asked for time off to take care of personal things or take an hour here or there, where no one knows where you are. Your actions around Marines are observed by those both above and below you, and you need to set a positive example at all times. Supervision of Marines does not mean just observing, at times you need to lead Marines into action by your actions. To supervise Marines you need to be present with them. Your approach to officers needs to become more tactful in nature. To become more of an asset to the battery and your section, you need to seek out what needs to be accomplished at the present time, vice what you think the mission is. By asking questions of your chain of command you can better accomplish the tasks at hand.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961207:  ATT TAD EXCESS with 3d Bn, 12 th Marines.
961223:  Counseled for deficiencies in performance and conduct. [Lack of judgement and conduct unbecoming a Marine. Due to your possession and consumption of hard liquor in the barracks, later resulting in your DWI, arrest by the Jacksonville Police Department on 961206.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970121:  Substance Abuse Evaluation: Applicant diagnosed as alcohol dependent with physiological dependence and poly substance dependence in remission.
970122:  Medical evaluation, CSACC, MCB Butler:
 Applicant found to be poly substance dependent, not in remission and alcohol dependent. Recommend Level III for poly substance abuse. Physician comments: “Pt admits to using marijuana, LSD, heroin, crystal meth, ecstasy while a Marine…. Pt has not used any drugs since here at Okinawa. Pt was referred due to alcohol use but has since admitted to drug use as well.”
970131:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from battery formation at 0745, 970118.
Awarded forfeiture of $670.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-4. Forfeiture and extra duty suspended for 6 months. Not appealed.
970213:  Applicant notified of intended recommendation for discharge by reason of misconduct due to minor disciplinary infractions and misconduct due to drug abuse. The least favorable characterization of service which you may receive is under other than honorable conditions.

970213:  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.

970214:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to drug abuse.

970306:  Commanding General, 3d Marine Division directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

970313:  SJA review determined the case sufficient in law and fact.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970429 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 but inequitable (B and C).

Issue 1. The Applicant’s Commanding Officer recommended the Applicant’s discharge for misconduct due to minor disciplinary infractions and drug abuse based on the Applicant’s incidents of misconduct and the Applicant’s self-referral for drug use. The Commanding General directed the Applicant’s discharge due to misconduct, specifically drug abuse. Reference (A) stipulates evidence voluntarily disclosed by a Marine as part of the course of treatment in a DOD treatment and rehabilitation program may not be used against the Marine on the issue of characterization of service when the Marine is being treated as the result of a valid self-referral. Therefore, the Board found an inequity in the Applicant’s character of service. A general (under 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 two retention warnings, nonjudicial punishment proceedings for a violation of Article 86 of the UCMJ and a civil arrest for driving while intoxicated. Therefore, the Board voted unanimously to change the Applicant’s character of service to general (under honorable conditions). Relief granted.

The Applicant requests that his character of service be changed based on the Applicant’s first enlistment in order for him to receive veterans’ benefits. In reviewing the propriety and equity of an Applicant’s discharge, the Board is limited to reviewing an Applicant’s service during the respective enlistment. Additionally, 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. Relief on this basis is 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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