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USMC | DRB | 2006_Marine | MD0600031
Original file (MD0600031.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. MD06-00031

Applicant’s Request
The application for discharge review was received on 200 5 0928. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to uncharacterized. 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 20060830 . 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 improper because my Commanding Officer influenced the decision of the court martial official, which is against the UCMJ. Also, I fought to stay in service, but the decision was already made.”

 Documentation
Only the service record book and medical records were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20000921 - 20010729      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20010730             Date of Discharge: 20021121

 Length of Service (years, months, days):

 Active: 01 03 22 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              24 days

 Age at Entry: 18

 Years Contracted: 5

 Education Level: 12                                 AFQT: 95

 Highest Rank: PFC                                   MOS: 2600

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (3)                                Conduct: 3.7 (3)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Letter of Appreciation, Rifle Marksman 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 :

000919:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
000921:  Pre-service waiver for drug granted.
020408:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 020404, tested positive for THC.

020411:  Substance Abuse Counselor, US Army Health Clinic: Diagnostic Impression: Cannabis intoxication. Recommendation: 4 hour Alcohol/Drug Education Completion on 020412 @ 0730-1130. Applicant waived the opportunity of the rehabilitation program.

020429:  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 112a:
         Specification: In that Private First Class J_ A. W_(Applicant), U.S. Marine Corps, Marine Corps Detachment, Defense Language Institute, Foreign Language Center, Presidio of Monterey, CA on active duty, did, on or about 2 April 2002, wrongfully use marijuana while assigned to the Marine Corps Detachment, to wit: Result of Marine Corps Detachment’s command urinalysis testing conducted on 2 April 2002, tested positive for marijuana, confirmed by the Naval Drug Laboratory, San Diego, (NavDrugLab message DTG 082343Z, Apr 02) urine sample results.
          Finding: Charge I and the specification thereunder, guilty.
          Sentence: Forfeiture of 2/3 pay per month for 1 month, confinement for 30 days, reduction to E-1.
         CA action 020430: Sentence approved and ordered executed.

020430:  Applicant found fit for confinement.

 020430:  Applicant to confinement.

020524:  Applicant from confinement and returned to duty.




020603:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation. Having knowledge of a lawful order issued by the Commanding Officer, to wit: DetO 1700.2, Control, Possession, and Consumption of alcoholic beverages, dated 9 Aug 00, and incorporating change 1 dated 15 May 01, an order which it was his duty to obey, did on or about 25 May 02, wrongfully drink alcoholic beverages while being underage.

 020701:  Counseling: Advised of deficiencies in performance and conduct (Illegal drug involvement, specifically usage, as identified through urinalysis testing by NAVDRUGLAB San Diego CA, (NAVDRUGLAB San Diego CA//41//R082343Z Apr 02 SSN: (social security number deleted), locally assigned batch number 2007, Spec Number 02, Lab Batch Number S0204111, Lab accession Nr S0241111098, Type of drug identified: THC-27. Applicant advised of being processed for administrative discharge action.
020725:  Applicant notified of intended recommendation for discharge by reason of misconduct, due to drug abuse with an under other than honorable characterization of service . The factual bas es for this recommendation was inability/unwillingness to comply with military regulations; violations of the UCMJ and federal/state/local statutes, specifically, due to confirmed drug usage .

020726:  Applicant advised of rights and having elected not to consult with counsel, elected to appear before an Administrative Discharge Board.
020726:  Commanding Officer, Marine Corps Detachment, Defense Language Institute, Foreign Language Center, Monterey, CA recommended to Commanding General, Training Command, Quantico VA that the Applicant’s discharge be under other than honorable conditions by reason of confirmed drug usage. The factual basis for this recommendation was respondent’s violation of the UCMJ and failure to conform to military standards and regulations.

020927:  Applicant submitted a conditional waiver requesting a general under honorable conditions discharge.

021007:  Applicant’s conditional waiver is disapproved.

021017:  Applicant unconditionally waived right to an administrative separation board.





021025:  SJA review determined the case sufficient in law and fact.

021114:  GCMCA, Commanding General, Training Command, Quantico, VA, 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 20021121 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 Applicant contends that his discharge was improper because his c ommanding o fficer influenced the decision of his court martial official . The government enjoys a presumption of regularity in the conduct of its affairs. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his commanding officer improperly influenced his court martial proceedings. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The Board found no impropriety or inequity in the Applicant’s administrative separation. Relief denied.

The Applicant requests a change in his characterization of service to uncharacterized.
The NDRB advises the Applicant that by regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization. In the Applicant’s case, the evidence of record shows that due to his time in service he is ineligible for an uncharacterized discharge. Further the Applicant received an under other than honorable conditions discharge which is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of his military record. A summary court-martial conviction for violation of UCMJ Article 112a (wrongful use of a controlled substance) and NJP for Article 92 (Failure to obey a direct order) marred the Applicant’s service. Violations of Articles 92 and 112a are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial. 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. Therefore the Board found his under other than honorable conditions characterization appropriate. Relief is not warranted.

For the edification of the Applicant, 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 any 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. 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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