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USMC | DRB | 2005_Marine | MD0500787
Original file (MD0500787.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00787

Applicant’s Request
The application for discharge review was received on 20050330. 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 20050727. 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. My discharge was inappropriate because it was based solely on the one derogatory event happening in my 17 months as a Marine.”

Applicant provided the following Remarks:

 “I would like to thank you for the opportunity to present to you my request for an upgrade in my discharge status. The incident of poor judgment that caused my discharge from the United States Marine Corps has never been repeated. The lesson learned, while deserved, was the most difficult of my life. My heart was, and still is that of a Marine. My record up to that point speaks for itself. I not only received several letters of commendation, but from boot camp forward was chosen by my superiors to lead my peers.

I am a productive citizen in society. Since my discharge I have held a part time job and attended college full time. I am currently working full time and will be attending a fire academy in the evenings beginning March 30 th . My plans are to become a full time fire fighter and paramedic.

I truly appreciate the opportunity to bring this case before you. Thank you for giving full consideration to upgrading my discharge to “General”. I look forward to hearing from you soon.

Sincerely,

[signed] J_ M. H_ (Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter of Appreciation, dated July 28, 2003
Letter of Appreciation, dated August 05, 2003
Excerpt from Marine Battle Skills Training Handbook, Battle Skill Course, undated
Pistol score for period May 5, 2003 to May 22, 2003
Certificate for Battle Skills Course 14-03, dated August 22, 2003
Certificate for “All Endurance Team” Battle Skills Course, dated August 22, 2003
Rifle and pistol coach card, dated May 22, 2003
Verification of Military Experience and Training, date of information July 01, 2003 (4 pages, web extract from www.dmdc.osd.mil)
Range Coaches Course Certification, dated May 22, 2003
Lance Corporal promotion warrant, dated April 1, 2003
Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                011119 – 020714  COG

 Period of Service Under Review :
Date of Enlistment: 020715               Date of Discharge: 031206

 Length of Service (years, months, days):

         Active: 01 04 22
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 62

 Highest Rank: LCpl                         MOS: 1371

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (2)                       Conduct: 4.5 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: National Defense Service Medal, Letter of Appreciation (2)

 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 :

011116:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

030625:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 030620, tested positive for cocaine.

030701:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidence by NavDrugLab MSG 251752Z Jun 03.

030708:  Counseled for deficiencies in performance and conduct. [Usage of cocaine identified through urinalysis testing, via NAVDRUGLAB JACKSONVILLE FL message R251752Z JUN 03]. Advised being processed for separation. Applicant chose to make a statement. Applicant’s undated statement is contained in service record book.

030708:  Applicant advised of rights and having consulted with qualified counsel, elected to appear before an Administrative Discharge Board.

030714:  Evaluation Report for Substance Abuse: No diagnosis was made.
         Recommendations: (1) IMPACT to be scheduled by the BN SACO, (2) Weekly visits with Unit SACO until treatment, (3) Individual should be held strictly accountable for their actions, (4) Per the reference (a) MCO P1700.24b, individual may be processed for administrative separation for illicit substance use. Applicant refused treatment for substance abuse at the Naval Hospital, Marine Corps Base, Camp Lejeune.

030724:  NJP for violation of UCMJ, Article 112a: Between on or about 16 June and 20 June 2003 wrongfully used cocaine.
 Awarded forfeiture of $645.00 pay per month for 2 months, restriction for 60 days, reduction in paygrade to E-2. Not appealed.
030729:  Commanding Officer, 8 th Engineer Support Battalion, recommended to Commander, 2d Force Service Support Group, Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was the use of the illegal drugs (cocaine), supported by the positive urinalysis message of NavDrugLab MSG 251752Z. Commanding officer’s comments: “Private First Class H_ (Applicant) has been a Marine for one year and in this Battalion for four months. His use of illegal drugs was identified during a random urinalysis conducted here at 8 th Engineer Support Battalion. His actions indicate an inability to uphold our core values. Private First Class H_ (Applicant) was made well aware of the Marine Corps’ policy of zero tolerance in 2001 when he signed enclosure (12), which is also repeatedly reinforced throughout the chain of command. Using illegal drugs makes him unfit for duty and a risk to the safety of his fellow Marines and himself. Based on enclosures (3) through (6) [(3)Statement of First Lieutenant B_, dtd 15 Jul 03, (4) Statement of Second Lieutenant R_, dtd 14 Jul 03, (5) Statement of SSgt B_, dtd 14 Jul 03, (6) Statement of Sgt N_, dtd 14 Jul 03] it is apparent that PFC H_ (Applicant) is a knowledgeable and hard working Marine. This however is meaningless since once he leaves work he cannot be trusted to follow Marine Corps orders and policies and federal laws by engaging in illegal activities. I feel that an other than honorable discharge is warranted. Not only has he served less than honorably but also retaining him would adversely affect the moral and discipline, and military effectiveness of this organization.”

 030916:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions without suspension.

031125:  Commanding Officer, 8 th Engineer Support Battalion, 2d Force Service Support Group, forwarded to Commanding General, 2d Force Service Support Group, with concurrence, the Administrative Board’s findings and recommendation that Private First Class H_ (Applicant) be separated with an other than honorable conditions discharge and that it not be suspended.

031128:  SJA review determined the case sufficient in law and fact.

031202:  Commander, 2d Force Service Support Group, advised the Commandant of the Marine Corps, Headquarters, that the Applicant’s discharge was directed under other than honorable conditions by reason of misconduct due to drug abuse.

031206:  DD Form 214: Applicant discharged with an Under Other Than Honorable Conditions by reason of misconduct authority: MARCORSEPMAN 6210.5. Applicant did not sign DD Form 214.
        

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031206 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).

 The Applicant states his discharge was “inappropriate” because it was based on “one deragatory [sic] event” in “17 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 (cocaine), thus substantiating the misconduct for which he was separated. 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.

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 relevant post-service documentation for the Board to consider. Relief denied.

Concerning educational pursuits and employment: 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.

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 P1900.16F), effective 01 September 2001 until Present.

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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