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USMC | DRB | 2005_Marine | MD0501195
Original file (MD0501195.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. MD05-01195

Applicant’s Request
The application for discharge review was received on 20050705. 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 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 the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated

Applicant’s issues, as stated on the application:

“1. My discharge was inequitable because I did not receive legal representation. I never saw a legal officer or lawyer.

2. My discharge was inequitable because I was refused legal advice after I requested it from “3” commands.

3. My discharge was inequitable because I was made to sign administrative separation paperwork along with a waiver to a board hearing, only to be tried in a summary court martial, at the last minute. I did not sign a board waiver in relation to a summary court Martial; I signed the waiver after being told I was to be administratively separated.

4. My discharge was inequitable because I was refused promotion to E-5 on unreasonable grounds; improper consideration of “gossip” by my exec. officer before any charges were made against me. Had I been an E-5 the court-martial proceedings would have been different.

5. My discharge was inequitable because my statements were improperly coerced under duress; my wife and I were interrogated in separate rooms for more than 15 hours w/out an understanding of our rights.”

 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
College transcript printed August 24, 2005 (2 pages)
Statement from Applicant, dtd August 23, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19941019 - 19941128      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19941129             Date of Discharge: 19980825

 Length of Service (years, months, days):

 Active: 03 08 27 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              30 days

 Age at Entry: 21

 Years Contracted: 4

 Education Level: 12 (GED)                          AFQT: 84

 Highest Rank: Cpl                                   MOS: 6317

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NA*                                    Conduct: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert Badge, National Defense Service Medal, Letter of Appreciation, Navy Achievement Medal, Sea Service Deployment Ribbon (w/1*), Good Conduct Medal

*Not available


 Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

941017:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

 941129:  Pre-service waivers for weight/height, and moral granted.

 950330:  Counseling: Advised of deficiencies in performance and conduct (Lack of accountability of Armed Forces ID card.), necessary corrective actions explained.
980429:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 81: In that Corporal O_ D. S_(Applicant), III, Marine Fighter Attack Squadron 212, Marine Aircraft Group 12, 1 st Marine Aircraft Wing, did, at Korat, Thailand, during February, 1998, conspire with A_ S_ to commit an offense under the Uniform Code of Military Justice, to wit: the wrongful introduction of some marijuana onto Marine Corps Air Station Iwakuai, Japan, and in order to effect the object of the conspiracy the said O_ S_(Applicant) did purchase some marijuana and give it to A_ S_ to carry on board a U.S. military aircraft bound for Marine Corps Air Station Iwakuni, Japan, and violation of the UCMJ, Article 112a (5 specifications): Specification 1: In that Corporal O_ D. S_(Applicant), III, Marine Fighter Attack Squadron 212, Marine Aircraft Group 12, 1 st Marine Aircraft Wing, did, at Korat, Thailand, during February, 1998, wrongfully use marijuana.
         Specification 2: In that Corporal O_ D. S_(Applicant), III, Marine Fighter Attack Squadron 212, Marine Aircraft Group 12, 1 st Marine Aircraft Wing, did, in Iwakuni City, Japan on or about February 23, 1998, wrongfully use marijuana.
         Specification 3: In that Corporal O_ D. S_(Applicant), III, Marine Fighter Attack Squadron 212, Marine Aircraft Group 12, 1 st Marine Aircraft Wing, did at Los Angeles International Airport in Lost Angeles, California, on or about March 12, 1998, wrongfully use marijuana
.        Specification 4: In that Corporal O_ D. S_(Applicant), III, Marine Fighter Attack Squadron 212, Marine Aircraft Group 12, 1 st Marine Aircraft Wing, did, in Iwakuni City, Japan, on or about February 23, 1998, wrongfully distribute a small amount of marijuana.
        
Specification 5: In that Corporal O_ D. S_(Applicant), III, Marine Fighter Attack Squadron 212, Marine Aircraft Group 12, 1 st Marine Aircraft Wing, did, on or about February 23, 1998, on board Marine Corps Air Station Iwakuni, Japan, wrongfully introduce about an ounce of marijuana, onto an aircraft used by an armed forces or under control of the armed forces to wit: a C-130.
980429:  Acknowledged understanding of eligibility but not recommended for promotion to Sgt for the month of May 1998 because of pending legal action. Applicant chose not to make a statement.

980601:  Acknowledged understanding of eligibility but not recommended for promotion to Sgt for the month of June, 1998 because of pending legal action. Applicant chose not to make a statement.

980604:  Charges referred to summary court-martial.

980611:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 81:
         Specification: In that Corporal O_ D. S_(Applicant), III, Marine Fighter Attack Squadron 212, Marine Aircraft Group 12, 1 st Marine Aircraft Wing, did, At Korat, Thailand, during February, 1998, conspire with A_ S_ to commit an offense under the Uniform Code of Military Justice, to wit: the wrongful introduction of some marijuana onto Marine Corps Air Station Iwakuni, Japan, and in order to effect the object of the conspiracy the said O_ S_(Applicant) did purchase some marijuana and give it to A_ S_ to carry on board a U.S. military aircraft bound for Marine Corps Air Station Iwakuni, Japan. Plea: Guilty. Finding: Guilty.
         Charge II: violation of the UCMJ, Article 112a:
         Specification 1: In that Corporal O_ D. S_(Applicant), III, Marine Fighter Attack Squadron 212, Marine Aircraft Group 12, 1 st Marine Aircraft Wing, did, At Korat, Thailand, during February 1998, wrongfully use marijuana. Plea: Guilty. Finding: Guilty
         Specification 2: In that Corporal O_ D. S_(Applicant), III, Marine Fighter Attack Squadron 212, Marine Aircraft Group 12, 1 st Marine Aircraft Wing, did, in Iwakuni City, Japan on or about February 23, 1998, wrongfully use marijuana. Plea: Guilty. Finding: Guilty
         Specification 3: In that Corporal O_ D. S_(Applicant), III, Marine Fighter Attack Squadron 212, Marine Aircraft Group 12, 1 st Marine Aircraft Wing, did. At Los Angeles International Airport in Lost Angeles, California, on or about March 12, 1998, wrongfully use marijuana. Plea: Guilty. Finding: Guilty
        

Specification 4: In that Corporal O_ D. S_(Applicant), III, Marine Fighter Attack Squadron 212, Marine Aircraft Group 12, 1 st Marine Aircraft Wing, did, in Iwakuni City, Japan, on or about February 23, 1998, wrongfully distribute a small amount of marijuana. Plea: Guilty. Finding: Guilty
          Specification 5: In that Corporal O_ D. S_(Applicant), III, Marine Fighter Attack Squadron 212, Marine Aircraft Group 12, 1 st Marine Aircraft Wing, did, on or about February 23, 1998, on board Marine Corps Air Station Iwakuni, Japan, wrongfully introduce about an ounce of marijuana, onto an aircraft used by an armed forces or under control of the armed forces to wit: a C-130. Plea: Guilty. Finding: Guilty
          Sentence: Forfeiture of $617.00, confinement for 30 days, reduced to E-1.
          CA action 980702: Sentence approved and ordered executed.

980701:  Acknowledged understanding of eligibility but not recommended for promotion to Sgt for the Prom Qtr of July, Aug, Sep because of Summary Court Martial. Applicant chose not to make a statement.

980728:  Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense with a characterization of service as under other than honorable conditions. The factual basis for this recommendation was contained in enclosure (1).

980729:  Applicant advised of rights and having consulted with counsel, elected to waive all rights.

980730:  Commanding Officer, Marine Aircraft Group 12 recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

980807:  SJA review concurred with recommendation.

980807:  GCMCA, Commanding General, 1 st Marine Aircraft Wing, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.
Service Record was missing elements of the Summary of Service (pro/con marks).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980825 by reason of misconduct due to the commission of a serious offense (A and B) 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 (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant’s misconduct is clearly documented. Therefore, relief is 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. T he Applicant’s service was marred by a summary court martial, at which he pled guilty to violations of UCMJ Article 81 (conspiracy) and 112a (5 specifications of wrongful use, possession of controlled substances). 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.

 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.

The Applicant states that his discharge was inequitable because:

-        he did not receive legal representation
-        he was refused legal advice
-        he was made to sign administrative separation paperwork with a waiver to a board hearing

The Applicant’s record shows that the Applicant was represented by counsel at his summary court martial. The record also shows that the Applicant had consulted with counsel when he signed the Acknowledgement of Rights to be Exercised or Waived During Separation Proceedings. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. The record contains no evidence of any wrongdoing by the government or anyone involved in the administrative discharge process. Relief denied.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 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 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. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until 31 August 2001).

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, Articles 81 (conspiracy) and 112a (wrongful use, possession of controlled substances).
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 .

E. 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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