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USMC | DRB | 2005_Marine | MD0501358
Original file (MD0501358.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. MD05-01358

Applicant’s Request
The application for discharge review was received on 20050808. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. Subsequent to submitting the application, the Applicant designated Disabled Veterans as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060413. 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 letter to the Board:

“My Discharge was inequitable because it was based on one isolated incident in (6) Six years of honorable service with no other adverse action.”

“I am writing to you in the hope that you will be able to upgrade my discharge. My level of separation was Under other than Honorable Conditions. I am requesting that this discharge be changed to General-Under Honorable Conditions. I have had a total of six years of honorable service with just one isolated incident. My proficiency and conduct marks were always at or above average and my fitness reports were always at or above average and my fitness reports were always excellent and outstanding. I received the Good Conduct medal in 1993 as well the National Defense Service Medal, United Nations Medal, Marine Corps Expeditionary Medal, Armed Forces Expeditionary Medal and the Sea Service Deployment Medal with one star. I have been a law-abiding citizen for the entire time I have been out of the Marine Corps. I feel that my discharge should be upgraded to General-Under Honorable Conditions for these reasons. I have submitted a copy of my DD-214 discharge papers for your review. Thank you for your consideration and your help in this matter.

Thank You,

[signed] R_ P. W_ (Applicant)”

Additional issues submitted by Applicant’s counsel/representative:

 “After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contention of the appellant in his request for an upgrade of his current Under Other Than Honorable Conditions Discharge (OTH) to that of General Under Honorable Conditions.

The FSM served from July 2, 1990 to August 31, 1996 at which time he was discharged due to Misconduct.

The FSM contends the current character of discharge is to harsh compared to his character of service and level of proficiency and conduct marks. The record reflects more than six years of active duty with the award of two Good Conduct Medals, with several other citations and awards.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge is improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances of the case presented before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See SECNAVIST 5420.174D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.

Thank you for your cooperation in this matter.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Copy 4)
Letter from R_ P. W_ (Applicant) dated 25 July 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19890811 – 19900701               COG
         Active: USMC              19900702 – 19931214               HON

 Period of Service Under Review :
Date of Enlistment: 19931215             Date of Discharge: 19960831

 Length of Service (years, months, days):

 Active: 02 08 17
         Inactive: None

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

 Age at Entry: 23

 Years Contracted: 4

Education Level: 12                                 AFQT: 74

 Highest Rank: Sgt                                   MOS: 0341

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 (3) Conduct: 4.6 (3) [Fitness Reports were available for review.]

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Sharpshooter Badge, Pistol Expert Badge (4 th Award), Good Conduct Medal, Armed Forces Expeditionary Medal (Somalia), National Defense Service Medal, United Nations Medal, Meritorious Unit Commendation, Marine Corps Expeditionary Medal (Burundi), Sea Service Deployment Ribbon (W/1 Star)


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 :
890713:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

931215:  Reenlisted this date for a term of 4 years.

960327:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 80:
         Specification 1: Did on or about February 95, attempt to use steroids by injecting himself in the buttocks, Camp Pendleton, CA
         Specification 2: Did on or about February 95, attempt to wrongfully possess steroids, Camp Pendleton, CA.
         Charge II: violation of the UCMJ, Article 92:
         Specification 1: Did on or about 08 Aug 1995 wrongfully possess ten unregistered weapons in his on base quarters, Camp Pendleton, CA.
         Specification 2: Did on or about 08 Aug 1995 wrongfully possess an unregistered weapon in his vehicle, Camp Pendleton, CA.
         Specification 3: Did on or about 08 Aug 1995 wrongfully possess drug paraphernalia, Camp Pendleton, CA.
          Finding: to Charge I and Charge II and the specification thereunder, guilty.
          Sentence: Forfeiture of $868.00 per pay for 1 month, restriction duty for 60 days, reduced to E-4.
         CA action 970327: Sentence approved and ordered executed.

960512:  Consultation Report done by G_ A. G_ Health Care Evaluator: This 25-year old married male was referred by Command for steroid use.
         Drug history: Used steroids -- injected 2 times.
         Impression: (unreadable)
         Recommendation: Process for separation per MCO.
960605:  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. The factual basis for this recommendation was your Non-Judicial Punishment evidencing your drug abuse.
          [Administrative Error: The factual basis for recommendation should be Summary Court-Martial instead of Non-Judicial Punishment.]

960605:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

960605:  Commanding Officer, 2nd Battalion 5th Marines, recommended to the Commanding General, 1st Marine Division, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.

960702:  SJA review determined the case sufficient in law and fact.

960710:  Commanding General, 1st Marine Division 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.

960831:  Applicant was unavailable for signature on DD-214.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960831 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).

Given his years of service and achievements, the Applicant contends that his discharge is inequitable because it is based on one isolated incident. Applicable regulations require that a Marine’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. However, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Marine’s overall service. The incident need not result in formal punishment to be properly used to characterize a Marine’s service. There is credible evidence in the record that the Applicant abused drugs. The Applicant was convicted at Summary Court-Martial on 19970327 for a violation of UCMJ Articles 80, attempt to use and possess steroids and 92, failure to obey regulations by wrongful possession of drug paraphernalia. 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 was properly notified, processed and discharged with an under other than honorable conditions by reason of misconduct due to drug abuse. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Marine Corps. Therefore, the Board concluded that the Applicant’s discharge was proper and equitable as issued. Relief denied.
The Applicant advises the Board that he has been a law-abiding citizen since his discharge. While 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 Marine Corps, the Board 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct. At this time, the Board found that the Applicant’s statements concerning post-service conduct, without documented evidence, do not mitigate the offense for which he was discharged. No relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the 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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