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USMC | DRB | 2005_Marine | MD0500915
Original file (MD0500915.rtf) Auto-classification: Denied


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

ex-LCPL, USMC
Docket No. MD05-00915

Applicant’s Request
The application for discharge review was received on 20050426. 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.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060131. 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 one isolated incident in 55 months of service with no other adverse action. While serving I was awarded the Navy achievement medal, the good conduct medal, the national defense medal, and the overseas service ribbon. I was also awarded a certificate of commendation. I attended survival, evasion, resistance, and escape training. Also I completed a course at the defense nuclear weapons school, and marine security guard school. At marine security guard school I voluntarily extended my service contract in order to serve at U. S. Embassies overseas. I believe my record is one of honor and should reflect it accordingly.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Ltr from Commander 4 th Marine Expeditionary Brigade (AT), dtd March 6, 2003
Ltr from Commanding Officer, Marine Security Guard Battalion, dtd January 22, 2003
Ltr from Commanding Officer, Marine Security Guard Battalion, dtd November 26,   2002 (3 pages)
Applicant’s Unit Punishment Book, NAVMC, dtd November 21, 2002 (2 pages)
Voluntary Statement Ltr from Corporal C_ F. H_ (Applicant), dtd November 18, 2002        (2 pages)
NAVDRUGLAB, dtd November 14, 2002 (2 pages)
Applicant’s Acknowledgement of Rights, dtd November 26, 2002 (3 pages)
Purpose and Scope of the Navy Discharge Review Board and the Board for the       Correction of Naval Records, undated (3 pages)
Ltr from Director of Counseling Services, Consolidated Substance Abuse Counseling        Center (CSACC), dtd January 16, 2003 (2 pages)
Ltr from Lance Corporal C_ F. H_ (Applicant), dtd December 13, 2002
Ltr from Assistant Substance Abuse Officer, Marine Security Guard Battalion,     Quantico, Virginia, dtd 13 December 2002
Applicant’s DD Form 214 (Service 2) (2 pages)
Applicant’s Chronological Record, undated
Administrative Remarks (1070), dtd July 15, 1999
Administrative Remarks (1070), dtd October 02, 2000
Administrative Remarks (1070), dtd December 13, 2002
Administrative Remarks (1070), undated
Administrative Remarks (1070), undated
Administrative Remarks (1070), dtd March 11, 2003
Applicant’s NJP, dtd November 21, 2002 (2 pages)
Offense And Punishments (1070), blank page
MCTFS Record of Emergency Data, dtd November 19, 2002
Servicemember’s Group Life Insurance Election and Certificate, dtd November 11,          2002
MCTFS Basic Individual Record, dtd November 19, 2002 (3 pages)
Montgomery GI Bill Act of 1984 (MGIB), undated
Ltr from C_ H_ (Applicant), dtd April 21, 2005
Applicant’s Navy and Marine Corps Achievement Medal Certificate, March 27, 2002
Applicant’s Record Check Hopewell Police Department, May 17, 2005
Certificate of Completion from Virginia Center For Behavioral Rehabilitation, dtd May    13, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19980529 - 19980824      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19980825             Date of Discharge: 20030314

 Length of Service (years, months, days):

 Active: 04 06 20
         Inactive: None

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

 Age at Entry: 23

 Years Contracted: 4 (10 months extension on MCTFS BIR)

 Education Level: 12 (GED)                          AFQT: 81

 Highest Rank: Cpl                                   MOS: 5711

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NA*                  Conduct: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Marine Corps Good Conduct Medal, Navy and Marine Corps Overseas Service Ribbon W/1 Star, Certificate of Commendation, Rifle Qual (Marksman), Pistol Qual (Marksman)

*Not Available


 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 :

980521:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

980529:  Applicant granted a waiver for drug use.

021114:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 021112, tested positive for Cocaine.

021118:  Applicant makes a voluntary statement, admitting to cocaine use.

021121:  NJP for violation of UCMJ, Article 112a:
         Specification: In that Corporal C_ F. H_, U. S. Marine Corps, Marine Security Guard Battalion, Quantico, Virginia, did, at Lima, Peru, on or about 24 October 2002, wrongfully use cocaine a Schedule I controlled substance.
 Award: Forfeiture of $734.00 pay per month for 2 months, Restriction for 30 days, reduction to E-3. Not appealed.
021126:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with a characterization of service under other than honorable conditions. The factual basis for this recommendation was the in-service illegal drug use.

021127:  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.

021213:  Counseling: Advised of deficiencies in performance and conduct (Wrongfully using illegal drugs, to wit: cocaine.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.






030116:  Consolidated Substance Abuse Counseling Center (CSACC) Report: Applicant does not meet the Diagnostic and Statistical Manual of Mental Disorders criteria for drug abuse or dependence. Any confirmed illegal drug use is a violation of the Marine Corps Policy and requires that the SNM (Applicant) be processed for administrative separation per paragraph 6210.5 of MCO P1900.16E.
         Impression: Cocaine Abuse per MCO P1700.24B
         Prognosis: N/A
         Recommendation: (1) Abstain from all mood-altering drugs until separation (2) Place on Urinary Surveillance Program until separation from the Marine Corps (3) Hold strictly accountable for any further incidents (4) Administrative Separation

030122:  Commanding Officer, Marine Security Guard Battalion, recommended to Commanding General, 4 th Marine Expeditionary Brigade, Camp Lejeune, North Carolina, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: “This recommendation is based on the self-admittance and positive urinalysis test result of the use of cocaine. I recommend that Lance Corporal House be separated with a discharge under Other than honorable condition.”

030306:  SJA review determined the case sufficient in law and fact.

030306:  Commander, 4 th Marine Expeditionary Brigade (AT), advised the Commandant of the Marine Corps (MMSB) that the Applicant will be discharged with under other than honorable conditions by reason of misconduct due to drug abuse.
        
         Service Record Book is missing elements of information (pro/con marks).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030314 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).

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. 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 . In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. 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. T he Applicant’s service was marred by a nonjudicial punishment proceedings for violation of Article 112a (wrongful use of a controlled substance) of the UCMJ. 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 NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided a criminal records check and a certificate of completion for a security training course as documentation of his post-service. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and credible evidence of a substance free lifestyle , in order for consideration for clemency based on post-service conduct. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Therefore, no relief will be granted.

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 additional evidence related to this 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 .



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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