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USMC | DRB | 2005_Marine | MD0501038
Original file (MD0501038.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. MD05-01038

Applicant’s Request
The application for discharge review was received on 20050601. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “convenience of the government and reenlistment code to RE-1 and corresponding separation program number.” 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 20051020. 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 and reason for 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 attached document/letter to the Board:

“I E_ L. M_ am requesting a upgrade on my discharge that was given to me to a honorable discharge. And to change the reason for discharge to “Convenience of the government and a reenlistment code change to RE-1 and corresponding separation program number/designator. The discharge I was given I feel was excessive for a first time offender of the drug policy. I know that before the Gulf War military personnel had three offenses before receiving an under other than honorable discharge. After the Gulf War the military started down sizing and as a result of that I received an other than honorable discharge. I have a clean civilian record criminal and driving. I have been on my job for ten years. Sears Automotive and I have worked various part time jobs while working for Sears. When I got in trouble I was young and immature thinking that I could handle loosing a loved one which was my girlfriend at the time without seeking any kind of professional help at the age of 22 year old. I used the mistake I made for ten years as a memory of what not to do. And know I am ready to move on. If I could do it over again. I would do things much different. Now I try to be more of a leader and not a follower. I know I will never be able to represent my country the way I wanted. But I have no regrets about enlisting in the Marine Corps. The Marine Corps helped me to learn how to be a man with discipline, loyalty, team work, and respect. I am hoping that the board would find grace to grant me an upgrade on my discharge and change my reason for discharge.”

Sincerely Yours,
[signed] E_ M_ (Applicant)

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Character Reference ltr from W_ M_ (Applicant’s wife), dtd May 25, 2005
Letter of Clearance from Lolita Ramos District Clerk dtd May 20, 2005
Driving Record from Texas Department of Public Safety Driver Record Bureau dtd May 12, 2005
Official Certification of Driving Record from Louisiana Department of Public Safety and Corrections Office of Motor Vehicles dtd May 11, 2005
Official Certification of Driving Record from Louisiana Department of Public Safety and Corrections Office of Motor Vehicles dtd April 15, 2004
Character Reference Letter from Department of Veterans Affairs dtd December 17, 2004
Employment Reference Letter from P_ J_, dtd May 24, 2005
Employment Reference Letter from J_ D. S_, dtd December 15, 2004
Employment Reference Letter from A_ J_, dtd February 1, 2005
Character Reference Letter from Bishop E_ M_, dtd December 15, 2004
Service Related Documents (10 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19890621 – 19900618               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19900619             Date of Discharge: 19940805

 Length of Service (years, months, days):

 Active: 04 01 17
         Inactive: None

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

 Age at Entry: 17 (Parental Consent)

Years Contracted: 6

 Education Level: 12                                 AFQT: 50

 Highest Rank: Cpl                                   MOS: 3521

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (10)             Conduct: 4.3 (10)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert Badge, National Defense Service Medal


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN 6210.5.

 Chronological Listing of Significant Service Events :

890616:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

900619:  Drug Abuse Screening Form: Applicant admitted one-time marijuana use in May 1982.

900620:  Drug Abuse Screening Form: Applicant admitted marijuana use on two occasions (April 1990) while in the delayed entry program.

920826:  Company NJP for violation of UCMJ, Article 86: UA from 0710-1340, 04 Aug 92 at 43 Area, building #43544 his appointed place of duty.
         Award: Forfeiture of $100 per month for 1 month, restriction for 7 days. Not appealed.

931130:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 931119, tested positive for THC.

940105:  MSSG NJP for violation of UCMJ, Article 112a: Did, on board Camp Pendleton, on or about 931119, wrongfully use marijuana, a controlled substance.
 Award: Forfeiture of $531 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. Not appealed.
UNDATED:         Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was your NJP, which evidenced the illegal use of drugs.
940429:  Applicant refused offer of drug and alcohol treatment in conjunction with discharge. Applicant advised of address and phone number of Veterans Administration Hospital/Facility nearest his home of record.

940502:  Applicant advised of rights and having elected not to consult with counsel, elected to appear before an Administrative Discharge Board and to obtain copies of documents what will be forwarded to the Commanding General supporting this proposed discharge.
940613:  Commanding Officer, 1st Maintenance Battalion 1st Force Service Support Group, recommended to Commanding General, 1st Force Service Support Group Applicant discharge with an under other than honorable conditions by reason of misconduct due to drug abuse.

940628:  Unconditional waiver of Administrative Discharge Board. Applicant’s statement contained in Service Record.

940714:  SJA review determined the case sufficient in law and fact.

940718:  GCMCA, Commander, 1st Force Service Support Group, directed the Applicant's discharge with an 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 19940805 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

 The Applicant contends that the service characterization of under other than honorable conditions was inequitable because he was a first time offender of the drug policy. On 19890616, the Applicant certified complete understanding of the Marine Corps policy concerning illegal use of drugs. That is, the illegal distribution, possession or use of drugs is not tolerated in the Marine Corps. Whenever a Marine is involved in misconduct due to drug abuse, on the first offense, commanders shall process the Marine for administrative separation. In these cases, c haracterization of service normally will be under other than honorable conditions. There is clear evidence in the Applicant’s service record that he used illegal drugs. Indeed, the Applicant received non-judicial punishment on 19940105 for violation of UCMJ Article 112a Wrongful use of controlled substance. Evidence of such misconduct may be used to characterize a Marine’s discharge as under other than honorable conditions. The Board found that the Applicant’s service was equitably characterized. And so, relief on this basis is denied.
The Applicant requests that the NDRB change the Narrative Reason for Separation to Convenience of the Government and the Reenlistment Code to RE-1. Under its responsibility to examine the propriety and equity of an Applicant's discharge, the NDRB will change the reason for discharge if such a change is warranted. The Applicant’s service record clearly documents that drug abuse was the reason he was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Consequently, changing the Narrative Reason for Separation would be inappropriate. Further, since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces, the Board is not authorized to change a reenlistment code. Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. Relief on this basis is denied.

The Applicant implies that his discharge was inequitable due to youth and immaturity. The Board recognizes that serving in the Marine Corps is challenging. Our country is fortunate to have the many young men and women who are willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges. In fairness to those members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. After a thorough review, the records do not show that the Applicant was not responsible for his conduct and therefore should not be held accountable. Relief on this basis is denied.

While 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 the Marine Corps, the Board 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. The Applicant submitted three character references, criminal and driving records check, and three employment references. The Applicant is advised that his efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, and credible evidence of a substance free lifestyle. At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. And so, no relief is granted on this basis.

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 P1900.16D), 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 .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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