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USMC | DRB | 2005_Marine | MD0501086
Original file (MD0501086.rtf) Auto-classification: Denied


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

ex-PFC, USMCR
Docket No. MD05-01086

Applicant’s Request
The application for discharge review was received on 20050614. 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 20060517. 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

“I am respectfully requesting an upgrade in the discharge for reasons discussed an attachment Document 1.”

 “I am requesting amnesty to upgrade my current Other Than Honorable Discharge classification to an Honorable Discharge classification for the following reasons:
 a. The actions that I took to show a positive urinalysis were indiscriminate in nature. During the time of consumption, I was under a great deal of stress in regards to the care being performed for my wife. My wife has an evident personality disorder and to top it off, she became an alcoholic. To help her recover from alcoholism, she attended a group home in Oklahoma for 20 days during October 2003. However, to the entire family’s surprise, she continued drinking and later moved on to abuse other chemical substances. At this time, she is clean from these substances. She has been clean for the past 10 months from the date of this letter. We are childhood sweet hearts as we first met in 4th grade. My character is not normally so indiscriminate. To further prove this point, I have written and attached (Attachment A) my remembrance from conception to High School.
b. With an upgraded discharge classification, I hope ensure my civilian credibility is not corrupted. Credibility is established by a service providing a good service. The problem with the military is that the good service that is provided is ruined by the immorality that the good service is attached to. In detail, the management of various marines is established on an elementary scale because the leaders educations and behaviors are elementary. The following examples show some situations where this point can be better understood as self evident:
i. This situation occurred when I first arrived in NAS Ft. Worth and after checking in. At the end of the day, two Staff Sergeants asked if anyone could make a ‘beer run, I went to the store as Staff Sergeant A_ requested. They further asked me to deliver the beer to the marina. I drove to buy the beer with the money they gave me and then proceeded to deliver the beer to the marina on base as requested. Once I got there, they asked if I would like to have a beer with them and I told them no thank you. Staff Sergeant A_ indicated that it is only fraternization if they throw me into the lake. I didn’t know exactly how to interpret this until being discharged from the military. When I look back on this incident, it appears that I should have taken the beer and had a friendly talk with them so that I could have gotten to know my new leaders. How they interpreted my not having a beer with them would be pure speculation, however, I do not think they liked it.
ii. This situation occurred the day of the taking of the positive urinalysis test that gave reason to my current discharge. Before we began physical training and while in formation, we were informed of operation “golden flow” for Active Duty and Reserve Marines. It was indicated that all of the Reserve Marines would have their urinalysis test performed immediately following physical training. Next, the time of the urinalysis tests for active duty was indicated as the next day and several Marines let out an “ooh-raa”. I think that this gave the Active Duty Marines an unfair advantage of passing the urinalysis test.
iii. Before I was finally dismissed in September 2004, the Sergeant that was dismissing me indicated that I tried to take six thousand dollars (via bonus monies) from who he is representing. I rebutted indicating that this was completely false and contrary to that, I indicated I earn much more money in the civilian sector than I could ever hope to in the military. Figure one below shows the actual earnings since I have been working. As shown below, in the year 2000 1 earned $33,064 and in 2001 when I was primarily in military training, I earned $17,399. This is a $15,665 difference, however, given the pattern of the increased income levels shown increasing year to year, the actual dollar difference would theoretically be over $20,000 for the year 2001. This exhibit clearly shows indications of joining the military for non-profit reasons. I joined the military to become more physically fit, college funding, additional income, and to receive the best training while still being able to be at home. I did become more physically fit; however, the college funding and additional income expected was not received. Furthermore, the best training I received was the upbringing by my parents, not the military.

Your Earnings Record at a Glance________________________________________________
          Your Taxed       Your Taxed
Years You        Social Security  Medicare
Worked   Earnings         Earnings
________________________________________________________________________
 1993     $ 52              $ 52
1994     1,153             1,153
1995     0                0
1996                       4,990                              4,990
1997                       17,269                              17,269
1998                       18,139                              18,139
1999                       22,716                              22,71
2000                       33,064                              33,064
2001                       17,399                              17,399
2002                       43,503                              43,603
2003                       46,949                              46,949
Figure One. 2004 Social Security Information Received
In my opinion, before a person joins the military, a check of current income should be put in place so people do not put their families in needless financial stress.

The above examples show how superior’s educations and behaviors are practiced and interpreted as being elementary and thereby corrupting credibility.

I currently have good credibility in my family and work life. For example, I have built a website for my sister to publish poems. The website is located at http://www.sabellinc.com . Furthermore, I have always continued to work and go to school for support of my family. I have also built a website for myself located at http://e_(Applicant).sabellinc.com . Additionally, Attachment B shows performance reviews from the company that currently employs me. The details show good work ethic coupled with tenacity. People that know me best are aware that I approach life at the angle of improvement.
 c. I have always pursued self-improvement in hopes of a wealthy retirement. Attachment C shows a copy of my resume which documents continuous efforts to create a higher standard of living by establishing accomplishments. The current supervisor role and future positions that I may decide to apply for have been placed in jeopardy due to my indiscriminate behavior that I am respectfully requesting a pardon from. My resume also indicates that I am attending school at American Intercontinental University On-line (AIU). My school work is currently being funded by federal student loans received. Attachment D shows my current funding and degree plan with grades received from AIU. An upgrade to an Honorable Discharge will assist in paying back the student loans more efficiently by enabling employers to trust me for more intricate employment opportunities that offer higher salaries.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s Supporting Documents, Attachment A, “Conception to High School        Remembrance” (9 pages)
Applicant’s Supporting Documents, Attachment B, Performance Evaluations (39 pages)
Applicant’s Supporting Documents, Attachment C, Resume
Applicant’s Supporting Documents, Attachment D, Student Accounts AIU On line
         (3 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20001216             Date of Discharge: 20041020

 Length of Service (years, months, days):

 Active: 00 09 01
         Inactive: 03 01 03

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

 Age at Entry: 22

 Years Contracted: 8

 Education Level: 12                                 AFQT: 75

 Highest Rank: LCpl                                  MOS: 6541

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (4)              Conduct: 3.5 (4)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Sharpshooter Badge




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 :

000530:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

 010108:  Applicant reported for initial tour of active duty for training.

011009:  Applicant released from initial tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.
030317:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of April, May, Jun 03 promotion period because of PME. Applicant unavailable for signature.

040202:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, tested positive for THC.

040304:  Applicant examined at Branch Medical Clinic, NAS, JRB, Fort Worth by R.J. C_, LT, MC (FS), USNR. Applicant brought to medical because he made a comment about killing himself.
         Diagnosis: Adjustment disorder, occupational problem.
         Applicant not considered an acute threat to himself or anyone else. Applicant contracts for safety.

040306:  Counseling: Advised of deficiencies in performance and conduct (illegal drug involvement; specifically, wrongful use of THC, a controlled substance, as identified through urinalysis testing from Navy Drug Lab San Diego, CA msg 021802Z Feb 04 lab batch # 0004, specimen #012), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

040306:  NJP awarded. Applicant reduced to PFC. [Extracted from Marine Corps Transaction Register].
040901:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Oct, Nov, Dec 04 promotion period because of drug use. Applicant unavailable for signature.
041020:  Commanding General, Headquarters, Fourth Marine Aircraft Wing advised the Commandant of the Marine Corps (MMSB-20), that the Applicant will be discharged under other than honorable conditions by reason of misconduct due to drug use.

 Service Record Book contains a partial Administrative Discharge package.
Service Record was missing elements of the Summary of Service.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041020 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). The Board presumed regularity in the conduct of governmental affairs (D).

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 Applicant’s statement, that “the actions I took to show a positive urinalysis were indiscriminate in nature”, do not refute the presumption of regularity in this case. 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 Reserve 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 nonjudicial punishment proceedings for violation of the UCMJ. In addition, the Applicant was not recommended for promotion on 2 occasions. 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 Reserve 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 resume, his job performance evaluations, and a student accounts statement from his on-line university as documentation of his post-service accomplishments. While the Board acknowledges the Applicant’s accomplishments, the Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the 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 .

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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