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USMC | DRB | 2005_Marine | MD0501534
Original file (MD0501534.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. MD05-01534

Applicant’s Request
The application for discharge review was received on 20050914. 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. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060530. 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.

“My discharge was based on 1 account of misconduct. I served 30 months of my 2 nd enlistment unquestionably w/honors. I made a mistake ruined my chosen career. I don’t believe I deserve an Honorable Discharge. But I also don’t believe my term of service was other than honorable. That is why I am asking for an upgrade to a General Under Honorable.”

 Applicant’s Remarks: (Taken from the DD Form 293.)

In item 9 of this form it states the Navy Discharge Review Board does not have a traveling panel. I know Marines are a Department of the Navy, but do Marines have their own Discharge Review Board? If possible, I would like a Hearing closest to Nemet California.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement in Support of Claim from Applicant, dtd July 14, 2005
Applicant’s DD Form 214 (2)
USMC Fitness Reports (6)
Diploma for completion of Forward Observer Course Class 6-02, dtd September 27, 2002
Certificate of appointment to Sergeant, dtd February 1, 2002
Navy and Marine Corps Achievement Medal certificate, dtd October 14, 2002
Flag Letter of Commendation, dtd March 22, 2004
Excerpt from LA Times

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19971201 - 19980111      COG
          Active: USMC     19980112 - 20010930      HON

 Period of Service Under Review :
Date of Enlistment: 20011001             Date of Discharge: 20050216

 Length of Service (years, months, days):

 Active: 03 04 16
          Inactive: None

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

 Age at Entry: 21

 Years Contracted: 4 (4 month extension)

 Education Level: 12                                 AFQT: 55

 Highest Rank: Sgt                                   MOS: 0341

 Final Enlisted Performance Evaluation Averages (number of marks): Enlisted performance reports were available to the Board for review.

Proficiency: 4.0 (1)                                Conduct: 4.0 (1)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Navy and Marine Corps Achievement Medal (2ND AWARD), Navy Unit Commendation (2ND AWARD), Marine Corps Good Conduct Medal, National Defense Service Medal, Armed Forces Expeditionary Medal (Persian Gulf), Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Humanitarian Service Medal 2 ND AWARD), Sea Service Deployment Ribbon (3 RD AWARD), Coast Guard Meritorious Unit Commendation, Certificate of Commendation, Rifle Sharpshooter Badge, Pistol Marksmanship Badge


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 :

011001:  Reenlisted this date for a term of 4 years.

040723:  Counseling: Advised of deficiencies in performance and conduct (Unauthorized absence: On diverse occasions Applicant reported late to student formations. Applicant’ inability to be at appointed place of duty reflected poorly not only of Applicant’s own ability to properly manage time but also Applicant’s casual disregard of the other Marines in Applicant’s group who relied on Applicant to be on time. Future absences could result in NJP and consideration for disenrollment from BRC 5-04.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

040809:  Applicant on unauthorized absence 0730 to 1500 040809.

040811:  NJP for violation of UCMJ, Article 86: In that Sergeant J_ J. L_(Applicant), USMC, at Recruiters School, MCRD San Diego, CA did at 0730 on 9 Aug 04, without authority, absent himself from morning formation at which he was required to be, and did remain so absent until on or about 1500, 9 Aug 04.
         Award: Forfeiture of $1065 per month for 2 months, restriction and extra duty for 30 days. Forfeiture of $1630, restriction and extra duty for 30 days suspended for 30 days at which time unless sooner vacated will be remitted without further action. Not appealed.

040812:  Mental Health Unit – Branch Medical Clinic, San Diego, CA:
         Assessment:
         AXIS I: Adjustment disorder with depressed mood.
         Bereavement
         PTSD by history.
         AXIS II: Deferred.
         AXIS III: None reported.
         AXIS IV: Problems with primary support group-multiple family stresses and death of uncle (father to SNM), educational problems (dropped from recruiter school).
         Conclusion/Recommendations:
         Psychiatrically fit for duty and responsible for actions. Applicant can seek assistance from mental health resources at Camp Pendleton, chaplain or Family Service Center if desires. Military leave is recommended.

040819:  Applicant disenrolled from Rec School class 5-04 due to not meeting the prerequisites of MCO P1326.6D, in particular that portion dealing with disciplinary infractions.

041109:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 041029, tested positive for amphetamines/methamphetamines.

041110:  U.S. Marine Corps Criminal Investigation Division Report.

041115:  Applicant’s voluntary statement.

041118:  NJP for violation of UCMJ, Article 112a: In that SNM did, at RngCo, WFTBn (MCRD), Camp Pendleton, CA on or about 28 Oct 2004, wrongfully use Amphetamines and Methamphetamines.
         Award: Forfeiture of $945 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4. Not appealed.

 041122:  Applicant notified of intended recommendation for discharge with the
least favorable characterization of service as under other than honorable
conditions by reason of misconduct, specifically drug abuse.

041124:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

041130:  Branch Medical Clinic, Camp Pendleton, CA: Impression: Amphetamine dependence, early full remission.
         Recommendation: Residential treatment.
041213:  Medical evaluation by Consolidated Substance Abuse Counseling Center: Applicant meets the criteria for amphetamine dependence and alcohol dependence in remission.
          Recommendation: Process service member for administrative separation. Service member has been scheduled to attend Intensive Outpatient Treatment.
050121:  Counseling: Advised of deficiencies in performance and conduct (Lack of judgment and failure to report to appointed place of duty. While attending a course at CSAC Applicant failed to report to appointed place of duty on 050118 and 050119. The Applicant was told by counselor that Applicant was being dropped on 050119 for lack of attendance, and directed to report to work section. Applicant did not report to work section on 050120 until a Marine went to house to get Applicant. This type of behavior is not acceptable for a Marine, especially an NCO. This type of behavior is chargeable under the UCMJ specifically article 86.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

050123:  Commanding Officer, Weapons and Field Training Battalion (MCRD), Camp Pendleton, CA recommended Applicant’s discharge under other than honorable conditions by reason of unlawful use of a controlled substance. The factual basis for this recommendation was use of a controlled substance, specifically Ampethamines and Methamphetamines. By his actions, he has demonstrated that he has no potential for further military service.

050128:  SJA review determined the case sufficient in law and fact.

050128:  GCMCA, Commander, MCRD/WRR San Diego directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
        
The Applicant was discharged on 20050215 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 contends that he served 30 months of his 2 nd enlistment honorably and that his “discharge was based on one account of misconduct”. The Applicant requests an upgrade to General (under honorable conditions). The NDRB advises the Applicant that d espite 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. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as under other than honorable conditions 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 the award of nonjudicial punishment (NJP) on two occasions for violations of the Uniform Code of Military Justice (UCMJ). The Applicant’s misconduct included violations of Article 86 (unauthorized absence) and Article 112a (drug abuse: Amphetamines and Methamphetamines) . The NDRB further advises the Applicant that certain serious offenses warrant separation from the U.S. Marine Corps in order to maintain proper order and discipline. Violations of Article 86 and 112a are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial. The board found that the Applicant’s service was equitably characterized as under other than honorable conditions; therefore an upgrade to general would be inappropriate. Relief is therefore denied.

The following is provided for the edification of the Applicant. 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 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.

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.

The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Hement, CA. The Applicant is advised that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held at the Washington Navy Yard Washington, D.C. area.

 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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