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USMC | DRB | 2005_Marine | MD0501425
Original file (MD0501425.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. MD05-01425

Applicant’s Request
The application for discharge review was received on 20050824. 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 20060612. After a thorough review of the available 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 to the Board:

“Issue 1: As referred to in document 1 (Personal Statement), Page 1 Paragraph 4, sentences 2 and 3: My discharge is inequitable because I had a distinguished career in the forty-seven and a half months prior to this incident. This was my first –and- only criminal infraction either prior to, during, -or- since my military service.

Issue 2: As referred to in Document 1 (Personal Statement), Page 1, Paragraph 3 sentence 2. My discharge is inequitable –and- severely diminishes my ability to pursue gainful employment – and- the privileges needed for such a position.”

 Applicant’s Remarks: Taken from the DD Form 293 to the Board:

“Document 17 is proof of my certificate of commendation. I am presenting this copy of this certificate because I received it after my discharge – and –want it part of the record. There are two parts to this document: Part B are the information I have in my possession of the certificate of commendation itself. Part A is the documentation (copy) that I presented at the time of Court-Martial of a recommendation for the Navy Achievement Medal by my command. This recommendation never made it past Capt. J_ A. P_, USN but rather became the basis of the certificate of commendation.

I would like to thank you in advance for your time- and – consideration. I hope that this requests will result in a favorable outcome for myself because this issue has caused me great sadness – and – regret for more than a decade. Once again, if I can be of any additional assistance to the board please feel free to contact me. Thank You.

Respectfully,


[signed] R_ K. M_ II, MS, RPA-C(Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Ltr from R. K. M_ II, dtd August 17, 2005 (2 pages)
Statements of character (25 pages)
Reference ltr from K. M. F_, LCDR, CHC, USN, Staff Chaplin, dtd November 22, 1994
Associate in Science Degree, Erie Community College, State University of New York, awarded January 8, 1999
Degree in Bachelor of Arts, State University of New York at Buffalo, awarded June 1, 2000
Excellent Scholarly Achievement Award from The State University of New York, dtd May 12, 2000
Certificate in recognition for the award of a degree in biological sciences from the State University of New York at Buffalo, dtd May 13, 2000
Certificate of Achievement for completing the philosophy of arts minor, dtd 2000
Master of Science Degree from Daemen College, awarded May 22, 2004
Certified Physician Assistant Certificate, dtd July 15, 2004
Professional Physician Assistant Certificate from the University of the State of New York, dtd October 19, 2004
Physicians Assistant Registration Certificate from the University of the State of New York, for practice until September 20, 2007
Certificate from the Department of Regulation and Licensing to practice as Physician Assistant, dtd December 29, 2004
Fellow Membership Certificate
List of references
Character Reference ltr from C_ J. M_ Jr., Ph.D., Cancer Research Scientist, undated, unsigned
Memorandum from LT A. D. N_, MCSSS-Camp Johnson, dtd July 29, 1994
Memorandum from RPCS V_ M_, dtd July 29, 1994
Personal Award Recommendation from Command Chaplain, Marine Corps Base, undated
Proposed citation for Navy Achievement Medal
Ltr from Commanding General, W. S. G_ II, dtd November 14, 1994
Certification of Commendation, dtd November 14, 1994
Summary of action for certificate of commendaiton
Ltr from Commandant of the Marine Corps, dtd February 23, 1995
Ltr from Commanding General, 2d Marine Division, MarForLant, dtd February 28, 1995
Ltr from Commanding Officer, 10 th Marines, dtd March 2, 1995

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19900126 – 19901031               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19901101             Date of Discharge: 19950224

 Length of Service (years, months, days):

 Active: 04 03 24
         Inactive: None

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

 Age at Entry: 19

 Years Contracted: 4

Education Level: 12                                 AFQT: 86

 Highest Rank: Cpl                                   MOS: 0351/9916/8152

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 (12)                               Conduct: 4.6 (12)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Meritorious Mast, Good Conduct Medal, Sea Service Deployment Ribbon, Letter of Appreciation (2 nd Award) Navy’s Marine Corps Overseas Service Ribbon, Expert Rifle and Pistol (2 nd Award)



Character, Narrative Reason, and Authority of Discharge (as listed on DD214 at time of issuance):
OTHER THAN HONORABLE/COMPLETION OF REQUIRED ACTIVE SERVICE, authority: MARCORSEPMAN 6210.3

 Chronological Listing of Significant Service Events :

950131:  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 112a:
         Specification 1: Wrongfully possession of marijuana
         Specification 2: Wrongfully use of marijuana
         Specification 3: Wrongfully introduction of marijuana onto armed forces installation.
          Finding: to Charge I and the specifications thereunder, guilty.
          Sentence: Forfeiture of $564.00 pay per for 1 month, reduced to E-1. Confinement at hard labor for 1 month.
         CA action 950131: Sentence approved and ordered executed.

950203:  Counseling: Advised of deficiencies in performance and conduct (Illegal drug involvement specifically possession use and introduction into a military installation of marijuana and the Commanding and the Commanding Officer’s intent to recommend administrative separation for said illegal drug involvement), necessary corrective actions explained, sources of assistance provided.

950221:  SJA review determined the case sufficient in law and fact.

950224:  Applicant discharged.

Service Record Book did not contain the Administrative Discharge package.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950224 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The Board presumed regularity in the conduct of governmental affairs (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. 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.

Issue 1. The Applicant contends his discharge is inequitable because the “incident” that precipitated his discharge was the Applicant’s only “criminal infraction prior to, during -or- since” his military service. Regarding the Applicant’s conduct during military service, despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by summary court martial for illegal drug use, thus substantiating the misconduct for which he was separated. Regarding the Applicant’s post service conduct, 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. While the Board was impressed with the Applicant’s educational and professional achievements, as of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. The Applicant is encouraged to submit documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities if he repetitions the Board. Relief denied.

Issue 2. The Applicant contends that his discharge is inequitable because it impacts his ability to pursue employment. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief on this basis is 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. 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 .

D. 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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