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USMC | DRB | 2005_Marine | MD0501190
Original file (MD0501190.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. MD05-01190

Applicant’s Request
The application for discharge review was received on 20050706. 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 American Legion.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060131. 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 and from an attached document/letter to the Board:

“Request a review of discharge by the NDRB.”

 “To the respected members of the Naval Board:

RE: Upgrade of discharge

On July of 2003, a DD-form 149 was sent to personnel requesting reversal of my discharge, complete reversal of NJP, and addition of my enclosed Certificate of Commendation to my military records which has been left out of my DD-214. As an employee of the respected Sheriff’s department of Tennessee which conducts random drug tests, I have tested negative for drugs. I hope this proves my character in regards to using any form of narcotics. In extension to further proof of my good character, I have been attending a community college for a year.

I request of the Board members to reconsider the reversal of my discharge and acquittal of all charges against me as I was a faithful member of the Marine Corps. If the matter is not negotiable, I request the Board to advise me on the steps to take to get these issues resolved. The Board noted in the previous letter that I did not request that my case be heard by the ADB. To my recollection, I was never given an opportunity to be heard by the ADB. As a young man, I was under extreme stress when this matter was brought to my attention. The letter also noted that I did not seek representation of a lawyer. In fact, my lawyer advised me to go through the NJP process since he felt I could not win in a Court Marshall proceeding. This is the reason for proceeding with the NJP, to my disadvantage.

Once again, I point out that requested urine and polygraph tests which were both denied. Witnesses were present with me to vouch for the activities for the days in question. Their accounts were not given enough value during the hearing. Please take into consideration the good service record that I have held while a member of the USMC. I continue to serve my community well.

Respectfully,
[signed] D_ W. M_ (Applicant)”

The Applicant’s representative, American Legion, did not submit any issues for consideration


 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Certificate of Commendation dtd September 13, 2002
Letter from Applicant dtd August 2, 2005
Unofficial college transcript retrieved July 27, 2005 (2 pgs)
Reference letter from J_ C_, Owner of SOHO Technologies, dtd August 9, 2004
Interim employment review dtd August 5, 2004
Interim employment review dtd May 5, 2004
Reference letter from CPL E_ W_, dtd April 13, 2004
Reference letter from Lt. T_ M_, Davidson County Sheriff’s Office, dtd July 27, 2005
Letter of Recommendation from Lt. R_ D_, Davidson County Sheriff’s Office, undtd
Letter of Appreciation from Sheriff D_ H_, Davidson County Sheriff’s Office, dtd February 7, 2005
Certificate of Appreciation from Sheriff D_ H_, dtd December 31, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19990420 – 19990523               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19990524             Date of Discharge: 20030520

 Length of Service (years, months, days):

 Active: 03 11 27
         Inactive: None

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

 Age at Entry: 19

 Years Contracted: 4

Education Level: 12                                 AFQT: 47

 Highest Rank: Cpl                                   MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (11)                      Conduct: 4.3 (11)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbon (2d AwD), Meritorious Mast, Marine Corps Good Conduct Medal, Sharpshooter Rifle Badge, Sharpshooter Pistol Badge, Certificate of Commendation


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 :

990419:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

990420:  Pre-service waivers for drugs granted and pre-service misconduct (DBD Waiver-Law violations of the adjudicated serious traffic offense(s)) granted. [Partially extracted from SJA Review]

030410:  NAVDRUGLAB, SAN DIEGO, CA, reported Applicant’s urine sample, received 030407, tested positive for amphetamine/methamphetamine.

030416:  Director, Substance Abuse Counseling Center, Marine Corps Base Hawaii Screening Report: No diagnosis was made (Applicant does not meet the criteria for Drug Abuse or Dependence). Applicant denies the use of illicit drugs and wishes to remain on active duty.

030421:  Applicant acknowledged VA Statement of Understanding.

030423:  NJP for violation of UCMJ, Article 112a: At Co L, 3d Bn, 3d Mar on or about 030331 Cpl M_ (Applicant) tested positive for Amphetamine/Methamphetamine during a command urinalysis sweep.
         Award: Forfeiture of $700 per month for 2 months, restriction without suspension from duty for 45 days, extra duty for 45 days, reduction to E-3. Not appealed.

030423:  Counseling: Advised of deficiencies in performance and conduct (Misconduct which resulted on NJP on 030423), necessary corrective actions explained, sources of assistance provided and advised being processed for administrative separation.

030508:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. The least favorable characterization of service is under other than honorable conditions.

030508:  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. This waiver included the Applicant’s wavier of an Administrative Discharge Board.

030508:  Commanding Officer, 3d Battalion, 3D Marines recommended to Commanding General, Marine Corps Base Hawaii, via Commanding Officer, 3d Marines Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was his wrongful use of methamphetamine, and amphetamine as supported by NAVDRUGLAB SAN DIEGO, CA msg 101910Z APR 03 and his non judicial punishment on 030423.

0305xx:  SJA review determined the case sufficient in law and fact.

030519:  GCMCA, Commanding General, Marine Corps Base Hawaii directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030520 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 implies that the Government’s failure to honor his requests for urine and polygraph tests is inequitable. The Applicant further implies that his Commanding Officer did not properly consider the testimony of witnesses at the Applicant’s NJP for violating 112a of the UCMJ for amphetamine use. The Applicant’s Commanding Officer determined at NJP that the Applicant used illegal drugs. There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant’s NJP or subsequent administrative processing were inequitable or improper. 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. Despite a servicemember’s prior record of service, 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.

The Applicant contends that he does not recall being given the opportunity to appear before an administrative discharge board. The Applicant was notified of his Commanding Officer’s intention to recommend the Applicant’s discharge on 20030508. On 20030508, the Applicant also waived his right to appear before an administrative discharge board and seek counsel regarding the pending recommendation for separation. Relief on this basis is denied.

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 service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge. Relief denied.

The Applicant requests a “reversal of my discharge and acquittal of all charges against me.” In the Applicant’s case, r egulations limit the Board’s review to a determination on the propriety and equity of the Applicant’s discharge. The Board discovered no improprieties or inequities after a review of Applicant’s case. Petitions for correction of Naval records should be sent to the Board for Correction of Naval Records. The Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning relief in this matter.

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. 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 .

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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