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USMC | DRB | 2005_Marine | MD0501146
Original file (MD0501146.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. MD05-01146

Applicant’s Request
The application for discharge review was received on 20050628. 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. Subsequent to the application, the Applicant obtained representation by the American Legion.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060112. 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:

“was told in military civilian discharge class would be upgraded after 6 months. Also told by VA rep in Alabama after discharge”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
DD Form 215

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19940719 – 19940725               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19940726             Date of Discharge: 19961129

 Length of Service (years, months, days):

 Active: 02 04 03 (Does not include lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 2 days
         Confinement:              None

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 58

 Highest Rank: PFC                                   MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (8)                                Conduct: 3.9 (8)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksman, National Defense Service Medal, Armed Forces Service Medal, Sea Service Deployment Ribbon, Joint Meritorious Unit Award


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 :

940718:  Applicant briefed on Marine Corps policy concerning illegal use of drugs.

960826:  Applicant to unauthorized absence at 0731 on 960826.

960828:  Applicant from unauthorized absence at 1955 on 960828 (2 days/surrendered).

960903:  NJP for violation of UCMJ, Article 86:
 Specification: On or about 0730, 26 Aug 96 to 1955, 28 Aug 96 was UA from appointed place of duty.
          Award: Forfeiture of $237.00 pay per month for 1 month, restriction and extra duty for 14 days. Not appealed.

960904:  Applicant makes written voluntary statement to Captain E_ M. S_, Echo Company Commander, summarizing the Applicant’s marijuana use during the period of 960819 to 960823.

960911:  NJP for violation of UCMJ, Article 112a:
         Specification: On or about 19 Aug 96 to 23 Aug 96, admitted to using a controlled substance (marijuana).
 Award: Reduction in rank to PFC, forfeiture of $490.00 pay per month for 2 months, restriction and extra duty for 45 days. Not appealed.

 960925:  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.

960925:  Applicant advised of rights and having elected not to consult, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

960925:  Commanding Officer, 2d Battalion, 2d Marines, 2d Marine Division, recommended to Commanding General, 2d Marine Division, U.S. Marine Corps Forces Atlantic that the Applicant be discharged with under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation is the Applicant’s battalion NJP held on 3 Sep 96 for admitted use of (THC).
961001:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 960911, tested positive for THC.

961008:  Commanding Officer, 2d Marines, forwarded recommendation to the Commanding General, 2d Marine Division, U.S. Marine Forces, Atlantic, that the Applicant be discharged under other than honorable conditions for misconduct due to drug abuse.

961009:  Director, Alcohol Treatment Facility, Marine Corps Base Camp Lejeune North Carolina, Evaluation Report. Applicant was evaluated per references (a) and (b) on 27 September 1996 as a result of a command referral. The counselor’s diagnostic impression was Drug Abuse (Isolated Incident) and Alcohol Dependence and was confirmed by a medical officer’s diagnosis.
         Recommendation:
         1. Intensive Outpatient Treatment. It is requested that the unit submit a data sheet to the Center within three working days of receipt of this letter,
         2. SACO monitored AA meeting two times weekly until treatment/discharge.
         3. Weekly screening by unit SACO until treatment/discharge.
         4. Report to BAS for liver function test.
         5. Recommend that subject individual be administratively separated per reference (a).
         6. Subject individual was counseled and given the information for contacting a VA Hospital nearest to individual’s home of record for treatment after discharge for active duty. An appropriate SRB entry is recommended concerning this counseling.
         7. Subject individual should be held strictly accountable for actions.
         8. Per reference (a), subject individual is NON-DEPLOYABLE until after treatment.
         9. Special note: SNM is recommended for Administrative Separation in conjunction with treatment due to Drug abuse.

961021:  Consolidated Drug and Alcohol Center, Camp Lejeune North Carolina, Statement of Understanding of Treatment for Alcohol/ Substance Dependence Treatment at a Veterans Administration Medical Center (VAMC) for substance abuse problem. Applicant provided with information concerning treatment at VAMC. Applicant declined requesting treatment in conjunction with discharge.

961024:  SJA review determined the case sufficient in law and fact.




961115:  NJP for violation of UCMJ, Article 112a:
 Specification: At CoE, 2/2 on or about 2050, 12 Nov 96 at blg 245 in room 117 wrongfully used a controlled substance (marijuana).
          Award: Restriction and extra duty for 45 days, reduction to E-1. Not appealed.

961115:  Commanding General, 2d Marine Division, U. S. Marine Corps Forces, Atlantic, advised the Commandant of the Marine Corps (MMSB) that the Applicant will be discharged 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 19961129 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 Applicant states that he was told that after six months he could have his discharge upgraded. There is no law or regulation that authorizes a discharge to be automatically upgraded after six months. A former service member has 15 years, from the date of discharge, to petition the Board for consideration of an upgrade. The Board does not automatically upgrade a discharge after six months. Relief denied.

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 3 nonjudicial punishment proceedings for violations of Articles 86 and 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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

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 P1900.16E), effective 18 Aug 95 to 30 Jan 97.

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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