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USMC | DRB | 2006_Marine | MD0600062
Original file (MD0600062.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. MD06-00062

Applicant’s Request
The application for discharge review was received on 20051005. 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 20060824 . 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:

“I respectfully Request my Discharge to be upgraded General Under Honorable Conditions because it has had an affect on Receiving Veteran Medical Care and also making it Difficult to get employed at multiple employers. and while serving for three years in the Marine Corps I deployed to Kuwait and Iraq for 8 months. In 2003. I became a corporal . PFC and Lance Corporal were both Meritorious Promotions. and I also became a collateral Duty Inspector (CDI) as a Helicopter mechanic for HMM 268. Red Dragons. I also would like to say that I think my discharge was inequitable because it was based on one isolated Incident in 36 months of service with no other discrepancies like NJP’s or even a bad write up. Thank you very much for your time
 Sincerely L_ G_(Applicant) Semper fi”

 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20011017 - 20011209      COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20011210             Date of Discharge: 20040924

 Length of Service (years, months, days):

 Active: 02 09 15
          Inactive: None

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

 Age at Entry: 19

 Years Contracted: 5

 Education Level: 12                                 AFQT: 48

 Highest Rank: Cpl                                   MOS: 6112

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (*)                                 Conduct: 4.5 (*)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Global War on Terrorism Expeditionary Medal, Sea Service Deployment Ribbon, National Defense Service Medal, Presidential Unit Citation, Letter of Appreciation, Rifle Sharpshooter Badge
*Not Available


 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 :

011017:  Pre-service waiver granted.

011017:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
040525:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 040519, tested positive for THC.

040602:  NJP for violation of UCMJ, Article 112a: In that Cpl G_(Applicant), L. W., at HMM-268 at Camp Pendleton, CA, on or about 051904, wrongfully use a controlled substance(marijuana).
         Award: Forfeiture of $792 per month for 2 months, restriction and extra duty for 30 days, reduction to E-3. Not appealed.

 040602:  Retention Warning : Advised of deficiencies in performance and conduct (Violation of Article 112a of the UCMJ, wrongful use of a controlled substance (marijuana), which resulted in Sqdn NJP on 040602.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
040602:  Retention Warning : Advised of deficiencies in performance and conduct (Violation of Article 112a of the UCMJ: Wrongful use of a controlled substance (marijuana), which resulted in Sqdn NJP on 040602.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
040610:  Counseling: Advised of deficiencies in performance and conduct (Violation of Article 112a of the UCMJ, Wrongful use of a controlled substance (marijuana), which resulted in Sqdn NJP on 040602.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.
040610:  Referred for substance abuse evaluation to the Consolidated Substance Abuse Counseling Center, Camp Pendleton . Applicant acknowledged VA treatment statement and refused medical officer’s evaluation.
040610:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service being under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was Article 112a of the UCMJ (Wrongful use of a controlled substance). In that LCpl G_(Applicant), did, at Camp Pendleton CA, on or about 15 May 2004, wrongfully use marijuana (THC), a controlled substance, to wit: based on urinalysis results.

040610:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

 040610:  Commanding Officer, Marine Medium Helicopter Squadron 268, recommended Applicant’s discharge under other than honorable conditions by reason of drug abuse.
040624:  Commanding Officer, Marine Medium Helicopter Squadron 268, recommended to Commanding General, 3d Marine Aircraft Wing via Commanding Officer, Marine Aircraft Group 39 , Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

040723:  Commanding Officer, Marine Aircraft Group 39 forwarded, recommending approval of Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: “On 17 October 2001, Lance Corporal G_ (Applicant) as given an opportunity to serve in the United States Marine Corps under a Drug Use and Abuse waiver. On 2 June 2004, Lance Corporal G_ (Applicant) was found guilty at office hours of violating Article 112A of the UCMJ for illegally using Marijuana on or around 19 May 2004. Despite being afforded the opportunity, he refused medical treatment for his drug use. His lack of maturity, weak judgment, poor conduct and irresponsibility are unacceptable characteristics of a United States Marine and lead me t o believe that Lance Corporal G_(Applicant) is no longer able to serve as a functioning member of military service. His complete disregard of the most basic rules and regulations governing the Marine Corps cannot be ignored. I recommend Lance Corporal G_(Applicant) be expeditiously separated under other than honorable conditions. ”

040817:  Supplemental acknowledgement of administrative discharge: Applicant advised of rights excluded for Applicant’s acknowledgement of rights of 040610. Applicant acknowledge receipt.

040908:  SJA review determined the case sufficient in law and fact.

040921:  GCMCA, Commanding General, Third Marine Aircraft Wing directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040924 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).

 In the Applicant’s case, he states his discharge was based on one isolated incident in “36 months.” 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 award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief 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. The Applicant’s service was marred by a nonjudicial punishment proceedings for violation of Article 112a of the UCMJ. 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.

The Applicant states that he wants an upgrade because the character of his discharge has an affect on “receiving veteran Medical Care and also making it difficult to get employed at multiple employers.” The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, 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.

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.

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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