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USMC | DRB | 2005_Marine | MD0501001
Original file (MD0501001.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. MD05-01001

Applicant’s Request
The application for discharge review was received on 20050524. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant did not designate a representative on the DD Form 293. The Applicant requested a documentary record discharge review. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. Subsequently, the Applicant elected to attend a personal appearance hearing. After the Applicant was sent a scheduling notice for the September 2006 timeframe, he requested a documentary record discharge review.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20060421. After a thorough review of the available 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 4-1 to recommend the reissue or correction of the Applicant’s DD 214, Block 24, character of service, to read: “UNDER OTHER THAN HONORABLE CONDITIONS.” The Board’s vote was unanimous that the character of the discharge shall not change on the basis of the Applicant’s issues as stated on Form DD 293. 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:

“Issue 1: I have maintained my bearing for over twelve years since discharge. No involvement with law enforcement or drugs. My record is clean.

Issue 2: I wish to apply for a state job and I do not want an undesirable discharge on my record. The possibility of joining the National Guard would be greatly improved with a discharge upgrade.

Issue 3: My father was Korean War Veteran, my oldest brother was a Vietnam era veteran as was my second oldest brother. My third brother served on a surface vessal during Lebanon and Libiya. There Honorable discharges are a great source of family pride and I would love to hang my discharge on the wall with theirs. I am willing to do the three hundred and twenty seven days I owe the Marine Corps.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
U.S. Army Business Card from D_ E. M_
E-mail from U.S. Army, dtd May 31, 2005
Copy of Applicant’s DD Form 214
Applicant’s general discharge certificate, dtd September 8, 1992
Applicant’s orders to Camp Pendleton Naval Hospital, dtd August 6, 1992

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19890609 - 19890823      COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 19890824             Date of Discharge: 19920908

 Length of Service (years, months, days):

 Active: 03 00 15 (Does not exclude lost time)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              24 days

 Age at Entry: 19

 Years Contracted: 4

 Education Level: 12                                 AFQT: 71

 Highest Rank: PFC                                   MOS: 0842

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (8)                                Conduct: 3.7 (8)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Good Conduct Medal, Letter of Appreciation, National Defense Medal, Combat Action Ribbon, South West Asia Medal, Letter of Appreciation (2 nd )


 Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN 6210.5.

 Chronological Listing of Significant Service Events :

890525:  Pre-service waiver for morals granted.
900703:  Counseling: Advised of deficiencies in performance and conduct (PFT failure.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

901007:  NJP for violation of UCMJ, Article 112a: In that PFC R_(Applicant), did, on or about 900731, wrongfully use a controlled substance, to wit: Methamphetamine, as proven by NAVDRUG LAB SDIEGO CA dtd 172005Z Aug 90.
         Award: Forfeiture of $362 per month for 2 months, reduction to E-1. Not appealed.
        
901016:  Counseling: Advised of deficiencies in performance and conduct (Illegal drug involvement; usage of Methamphetamine, as proven by NAVDRUG LAB SDIEGO C dtd 172005Z Aug 90.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911218:  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 112a: In that Private First Class M_ T. R_(Applicant), U.S. Marine Corps, Headquarters Battery, 11 th Marines, did at Camp Pendleton, California, on or in the surrounding community, within 14 days prior to 16 October 1991, wrongfully use marijuana.
          Finding: to Charge and the specification thereunder, guilty.
          Sentence: Forfeiture of $446.00, confinement for 30 days, reduced to E-1.
         CA action 911218: Sentence approved and ordered executed.

920511:  Applicant seen by SAC counselor and recommended for Level III. [Date extracted from letter from Medical Officer to Substance Abuse Control Officer.]

920511:  Applicant evaluated and found to be psychologically dependent on alcohol. Antabuse prescribed. Applicant refused antabuse.

920511:  Applicant signed Veteran Administration statement of understanding and requested enrollment in Veteran’s Administration Hospital/Facility Drug and Alcohol Rehabilitation Program in conjunction with discharge.

920511:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse. The factual basis for this recommendation was a disciplinary record reflecting one (1) nonjudicial punishment and one (1) Summary Court Martial for violations of Article 112a, Uniform Code of Military Justice, for use of controlled substances. Applicant informed the least favorable character of service possible is under other than honorable conditions.
920513:  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.

920513:  Commanding Officer, Headquarters Battery, 11 th Marines recommended to Commanding Officer, 11 th Marines, Applicant’s discharge under other than honorable conditions by reason of misconduct, specifically his repeated abuse of illegal drugs. Commanding Officer’s comments: “Private R_(Applicant) was identified as a drug abuse by a urinalysis test administered on 31 July 1990. As a result, he was reduced to Private by the Regimental Commander at nonjudicial punishment on 7 October 1990. During a subsequent urinalysis, Private R_(Applicant) again tested positive for marijuana use. As a result of this urinalysis, he was tried by summary court-martial on 18 December 1991 and again reduced to Private.
 Based on his repeated abuse of drugs, unsatisfactory attitude toward drugs, and contempt for the Marine Corps’ policy on drug abuse, I believe that Private R_(Applicant) has no potential for further service and should be administratively separated. I further recommend that his characterization of service be “under other than honorable conditions.”
920604:  Commanding Officer, 11 th Marines, forwarded the recommendation for Applicant’s discharge, concurring that the Applicant should be discharged under other than honorable conditions by reason of misconduct due to drug abuse.

920612:  SJA review determined the case sufficient in law and fact.

920616:  GCMCA, Commanding General, 1 st Marine Division (Rein), FMF, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

920622:  Applicant requested VA medical treatment nearest home of record for alcohol dependence.

920807:  Applicant read and understood the basic order to report to Camp Pendleton Naval Hospital for further transportation via Medavac to Veterans Administrative Hospital Brooklyn, NY for medical treatment.

920908:  Applicant discharged. DD214 reads “under honorable conditions (general)” by reason of misconduct due to drug abuse.

xxxxxx:  Commanding General, Marine Corps Reserve Support Command, reported to Commandant of the Marine Corps that the Applicant was discharged administratively for misconduct on 920909.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920908 with a DD214 which indicated the character of service was under honorable conditions (general) by reason of misconduct due to drug abuse (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s DD214 contained an error but that the Applicant’s discharge was proper and equitable (B and C).

In its review of this case, the Board noted that the Applicant’s DD Form 214 contained a characterization of service as “Under Honorable Conditions (General).” The Applicant also submitted a certificate indicating he was discharged under honorable conditions. Based upon the overwhelming evidence of record, and by a vote of 4-1, the Board determined that the presumption of regularity did not apply in this case and that the Applicant’s DD 214 characterization of service was in error and without authority. The available documentation clearly shows that the Applicant was recommended for separation under other than honorable conditions and that his discharge was directed under other than honorable conditions. The Applicant also believed he was discharged under other than honorable conditions as evidenced by his DD Form 293 in which he noted that he received an UOTHC discharge. There is no evidence in the record that provides a basis for the DD 214 as issued; therefore the Board determined the document was issued with an error and recommended the Applicant’s DD 214 be reissued or corrected, as appropriate.

When a Marine’s service 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 nonjudicial punishment proceedings and a summary court-martial for violations of Article 112a 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

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

The Applicant implies that he would like to reenlist. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB and is not authorized to change a reenlistment code. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment, educational or enlistment opportunities. Relief on this basis would not be appropriate.

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. Paragraph 6210, Misconduct , of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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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