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USMC | DRB | 2005_Marine | MD0500886
Original file (MD0500886.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-PVT, USMC
Docket No. MD05-00886

Applicant’s Request
The application for discharge review was received on 20050419. 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.

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:

“Requesting upgrade for VA purposes, school scholarships, & job related.”

 Applicant provided the following letter:

“Dear Reader
         I would like to apologize for my behaviors in the past. I was at a down point in my life. I served as a combat veteran and proud of it. I am currently enrolled at Marshall University. If I could get an up grade on my discharge I could possibly get a scholarship to help me pay for it. I would like to put this chapter of my life behind me so I can provide for my family. I would like to thank you for your kindly consideration.

[signed] J_ C. S_ (Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Marshall University Student Schedule, Summer D 2005, dated April 04, 2005
Marshall University Student Schedule, Summer C 2005, dated April 04, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                000825 - 000828  COG

 Period of Service Under Review :
Date of Enlistment: 000829               Date of Discharge: 040226

 Length of Service (years, months, days):

         Active: 03 05 04 (Excludes lost time)
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 38

 Highest Rank: PFC                          MOS: 1812

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (10)                      Conduct: 3.6 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: CAR, SSDR, NDSM, PUC, RQB(EXPERT 3D Awd), PQB (EXPERT 5 TH Awd)

 Days of Unauthorized Absence: 24

 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 :
000727:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.



 011012:  NJP for violation of UCMJ, Article 92:
 Specification: On or about 0600, 011004, SNM was derelict in the performance of his duties, by sleeping on his post as a sentinel at the Unit Assembly area.
Violation of UCMJ, Article 113:
Specification: On or about 0600, 011004, while posted as a sentinel at the Unit Assembly area, SNM was found sleeping on his post.
Awarded forfeiture of $283.00 pay per month for 1 month (suspended for 6 months), restriction and extra duties for 14 days. Not appealed.

 Undated:         Applicant acknowledged eligibility but not recommended for promotion to Cpl for the October promotion period because of NJP

Undated:         Applicant acknowledged eligibility but not recommended for promotion to Cpl for the November period because of NJP.

Undated:         Applicant acknowledged eligibility but not recommended for promotion to Cpl for the October, November, and December promotion period because of NJP.

030514:  Counseled for deficiencies in performance and conduct [Insubordinate conduct towards NCO’s]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030523:  NJP for violation of UCMJ, Article 91(2 specs):
         Specification 1: At Camp Matilda, Kuwait, 2nd Tank Battalion, 2 nd MarDiv, O/A 0530 13 May, 2003 SNM displayed Insubordinate conduct toward a non-commissioned officer.
         Specification 2: At Camp Matilda, Kuwait, 2 nd Tank Battalion, 2 nd MarDiv, O/A 0630 12 May, 2003 SNM displayed Insubordinate conduct toward a non-commissioned officer.
         Awarded 14 days restriction, 14 days EPD, forf 7 days pay. Not appealed.

Undated:         Applicant acknowledged eligibility but not recommended for promotion to Cpl for the August period because of NJP.

031117:  NJP for violation of UCMJ, Article 86 (2 specs):
         Specification 1: At 2d Tank Battalion, 2d Marine Division, o/a 11 August 2003, SNM was UA from 0631 to 0730.
         Specification 2: At 2d Tank Battalion, 2d Marine Division, o/a 04 November 2003, SNM was UA from 0631 to 0705.
         NJP for violation of UCMJ, Article 91:
         Specification: At 2d Tank Battalion, 2d Marine Division, o/a 0900 04 November 2003, SNM have received an lawful order from GySgt W_, a Staff Non Commissioned Officer to wit: obtaining shoes for an inspection at the 2d Tank Bn Tank Ramp.
         Awarded forfeiture of $283.00 pay per month for 1 month (suspended for 6 months), restriction and extra duties for 14 days. Not appealed.

031230:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 031223, tested positive for cocaine.

Undated:         Administrative entry: Eligible but not recommended for promotion to Cpl for the Jan promotion period because of NJP. Applicant did not sign.

040109:  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 112a:
         Specification: PFC S_ (Applicant) did on or about 23 December 2003, wrongfully use cocaine.
         Finding: to Charge and the specification thereunder, guilty.
         Sentence: Forfeiture of $795.00 pay per month for 1 month, reduced to E-1 and 30 days of confinement.
         CA action 20040109: Sentence approved and ordered executed.

040109:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidence by the positive results of your urinalysis conducted on 18 December 2003, and your Summary Court Martial on 9 January 2004.
040109:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040128:  Substance Abuse Rehabilitation Evaluation, Naval Hospital, Camp Lejeune, NC, was done on 040122 and reviewed by credential provider on 23 Jan 04. No Diagnosis made.
         Recommendations: (1) Outpatient Treatment, (2) Remain abstinent from use of all substances, (3) Individual should be held strictly accountable for their actions, (4) Per the references (a), individual may be processed for administrative separation for illicit drug use.

040130:  Commanding Officer, 2d Tank Battalion, 2d Marine Division recommended to Commanding General, 2d Marine Division that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was the Summary Court Martial on January 9, 2004. Commanding Officer’s comments: (verbatim): Based on recommendation from his Platoon Commander and his Company Commander, retention of Private S_ (Applicant) is not in the best interest of the United States Marine Corps. His actions during his time in the Marine Corps clearly display his lack of loyalty, self-discipline and moral courage, as well as a proclivity to disrupt the good order and discipline of this unit. Through his use of illicit drugs, Private S_ (Applicant) displayed a clear disregard for the rules and regulations that govern the United States Marine Corps. Due to his behavior, it is my opinion that his willingness to be a Marine is little if any at all. Prior to his Summary Court Martial, Private S_ (Applicant) stated to my Legal Officer, First Lieutenant C_ D. N_ that his drug use was not a one-time mistake, and that if he is discharged from the Marine Corps he not only plans on continuing to use drugs, but he also plans on selling them. In addition to Private S_ (Applicant)’s Summary Court-Martial for drugs, he has also received three (3) Non-Judicial Punishments ranging from dereliction of duty, insubordinate conduct to unauthorized absences, and one (1) 6105 administrative page (Encl (1) CO ltr 1910 Legal dtd Jan 09, 2004, Encl (2) Certified True Copies of SRB Standard Pages). Due to his actions and voiced intentions I am certain that his continuance on active duty would be exceedingly prejudicial to good order and discipline in 2d Tank Battalion or any unit, especially in light of his adverse behavior. I emphasize the absolute necessity of removing him from our ranks expeditiously for the benefit of the Marine Corps.

040210:  SJA review determined the case sufficient in law and fact.

040210:  Commander, 2d Marine Division, II Marine Expeditionary Force, advised the Commandant of the Marine Corps (MMSB), that the Applicant’s discharge was directed 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 20040226 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).

 There is credible evidence in the record that the Applicant used illegal drugs. 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 a retention warning and 3 nonjudicial punishment proceedings for violations of Articles 86 (2 specs), 91, 92, and 113 of the UCMJ. In addition, the Applicant was found guilty by a summary court-martial of violating Article 112a, wrongful use of a controlled substance, thereby substantiating the reason for his discharge. 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.

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 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 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 sufficient post-service documentation for the Board to consider. 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 P1900.16F), 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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