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USMC | DRB | 2005_Marine | MD0501187
Original file (MD0501187.rtf) Auto-classification: Denied


        DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT

FOR OFFICIAL USE ONLY

ex-Pvt, USMCR
Docket No. MD05-01187

Applicant’s Request
The application for discharge review was received on 20050706. The Applicant requested a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant requested that his characterization of service received at the time of discharge be changed to honorable, he did not designate a representative on the DD Form 293.

 Decision

The Applicant failed to appear at his personal appearance hearing schedule d for 20060920. Therefore, a documentary discharge rev iew was conducted in Washington D.C. on 2006092 7 . 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


 The Applicant’s issues, as stated on the application:

“I am requesting an upgrade for Re-enlistment so that I may serve my wonderful country in the War on Terror”

 Documentation
The Applicant submitted the following documentation for the Board’s consideration in addition too the service and medical record:
Letter from Applicant, undated
Reenlistment Resume, undated
DD Form 370 enlistment request for reference from B_ L. M_, dated July 25, 1998
Reference from C_ K_, undated, unsigned
DD Form 370 enlistment request for reference from S_ M_, dated July 16, 1998
DD Form 370 enlistment request for reference from G_ B_, dated September 01, 1998
Character Reference letter from G_ B_, dated September 01, 1998 (2 pgs)
Reference letter from R_ D_, Houston Inflight Supervisor, dated March 13, 2006

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: 19891025             Date of Discharge: 19920812

 Length of Service (years, months, days):

 Active: 00 06 07
         Inactive: 02 03 10

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

 Age at Entry: 18

Years Contracted: 8

 Education Level: 12                                 AFQT: 72

 Highest Rank: LCpl                                  MOS: 1371

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (5)                       Conduct: 3.2 (5)

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


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

 Chronological Listing of Significant Service Events :

891023:  Applicant signed statement of understanding regarding the Marine Corps policy concerning illegal use of drugs and acknowledged previous use of marijuana.
891025:  RS-level enlistment waiver granted.

900814:  12 th MCD-level enlistment waiver granted.

900814:  Commenced initial active duty for training (IADT).

 910220:  Applicant released from IADT, having served 6 months and 7 days active duty with an honorable characterization of service.
911231:  NAVDRUGLAB, Oakland, CA, reported Applicant’s urine sample, received 911216, tested positive for THC.

 920117:  NJP for a violation of the UCMJ, Article 112a: Wrongful possession of a controlled substance (THC) on 911231.
          Award: Reduction to E-2. Not appealed.
 [In an entry recorded on the Applicant’s NAVMC 118 this date, the Applicant indicated he desired to exercise his right to refuse NJP.]

920117:  Counseling: Advised of deficiencies in performance and conduct (illegal drug involvement), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920221:  NAVDRUGLAB, Oakland, CA, reported Applicant’s urine sample, received 920213, tested positive for THC.

920314:  Counseling: Advised of deficiencies in performance and conduct (illegal drug involvement, specifically use of a controlled substance), necessary corrective actions explained and sources of assistance provided.

920314:  NJP for a violation of the UCMJ, Article 112a: Wrongful possession of a controlled substance (THC) on or about 920210.
 Award: Forfeiture of $30 per month for 1 month, reduction to E-1. Not appealed.
920314:  The Applicant notified of the intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was Commanding Officer’s NJP on 17 January 1992 and 14 March 1992 for possession of a controlled substance. Applicant informed the least favorable character of service possible was under other than honorable conditions. The Applicant was also advised of his rights at this time.

920501:  Commanding Officer/Inspector-Instructor, Company A, 6 TH Engineer Support Battalion , recommended the Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse .
Commanding Officer/Inspector-Instructor Comments: “PVT F_ (Applicant) was personally served and provided a complete copy of the notice of intent to recommend discharge on 14 March 1992... he was given until 1500 on 14 March to return the Acknowledgment of Rights Form. PVT F_ failed to comply with that directive and was subsequently absent from the 15 March’s drill. On 16 March 1992... [Applicant] was mailed an duplicate original Notice of Intent To Recommend Discharge and receipted for it on 18 March 1992. The Acknowledgement of Rights Form was not returned to this command until 27 April 1992.”
920516:  The Applicant acknowledged his rights and , having elected not to consult counsel , elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
920520:  Commanding Officer/Inspector-Instructor 6 th Engineer Support Battalion, Portland, recommended approval of the request to administratively separate the Applicant.

920706:  Commanding General, 4 th Force Service Support Group, recommended approval of the request to administratively separate the Applicant.

 Not Dated :       SJA review determined the case sufficient in law and fact .

920730:  GCMCA, Commanding General, Marine Reserve Force, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Not Dated:       Commanding General, Marine Corps Reserve Support Command, informed Commandant of the Marine Corps that Applicant was discharged on 920812.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920812 by reason of misconduct due to drug abuse (A and B ) 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 ( C and 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. 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 two nonjudicial punishment proceedings for violations of Article 112a of the UCMJ. The Applicant’s violations of Article 112a are serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at special or general court-martial. The Applicant’s conduct is a violation of the special consideration given the Applicant at the time of his waivered-enlistment. 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.

The Applicant requests that his discharge be changed so that he may reenlist. The Board has no authority to upgrade a discharge for the sole purpose of enhancing enlistment, employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. The Board discovered no impropriety after a review of Applicant’s case. Relief is not warranted.

The following is provided for the edification of the Applicant. 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 was scheduled to appear at a personal appearance hearing on March 13, 2006, but failed to appear before the Board. The Applicant requested, and was subsequently granted, a rescheduled hearing for September 20, 2006. On September 20, 2006, the Applicant informed the Board that, due to work commitments, he would be unable to attend his rescheduled hearing. Due to the Applicant’s failure to appear, the Board conducted a documentary record review. Having failed to appear before the Board for two scheduled hearings and a documentary record review having been completed, the Board now considers the Applicant’s opportunities for review by the NDRB exhausted. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a, wrongful use of a controlled substance.

C . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

D . 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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