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USMC | DRB | 2006_Marine | MD0600063
Original file (MD0600063.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD06-00063

Applicant’s Request
The application for discharge review was received on 20051004. 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 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 disch a rge was inequitable because it was based on one isolated incident in 36 months of service with no other adverse action . ”

“ Also want to continue my education.”

 Documentation
Only the service record book and medical record 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)    19910618 - 19920311      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19920312             Date of Discharge: 19960103

 Length of Service (years, months, days):

 Active: 03 09 22
          Inactive: None

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

 Age at Entry: 18

 Years Contracted: 4

 Education Level: 12                                 AFQT: 53

 Highest Rank: LCpl                                  MOS: 3531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (9)                                Conduct: 4.0 (9)

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

910617:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
910618:  Pre-service waiver for physical requirements (4 pounds underweight) granted.

 930222:  Counseling: Advised of deficiencies in performance and conduct (poor judgment while operating a government vehicle, specifically, while backing up in a 5-Ton without the use of a ground guide, which led to an accident causing damage to a POV). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930602:  Counseling: Advised of deficiencies in performance and conduct (failure to be at appointed place of duty at the time prescribed, specifically, UA from the armory on 930525). Warned that conduct of this nature is not within Marine Corps standards and will not be tolerated. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940301:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the period Apr, May, and Jun FY 94 because of attitude and last PRO/CON marks of 4.2/4.0. Applicant chose not to make a statement.

940810:  Squadron NJP for violation of UCMJ, Article 86: UA(AWOL) from 0530, 940720 to 1000, 930720 and 0730, 940721 to 0810, 940721.
         Award: Forfeiture of $200 per month for 1 month, reduction to E-2. Reduction suspended for 4 months. Not appealed.

 941118:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of December 1994, because of Applicant’s recent NJP in August 1994. Applicant chose not to make a statement.
950531:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the June 1995 prom period because of pending NJP. Applicant chose not to make a statement.
950621:  Squadron NJP for violation of UCMJ, Article 86: UA (AWOL) at 0730, 950615, failure to be at appointed place of duty.
         Award: Forfeiture of $548 per month for 1 month, restriction and extra duty for 30 days. Not appealed.

 950811:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Sep FY 95 because the Applicant not proven capabl e of becoming and performing a s NCO. Applicant chose not to make a statement.
950922:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 950911, tested positive for THC.

951013:  Squadron NJP for violation of UCMJ, Article 112a: between the months of August and September of 1995 did knowingly and wrongfully use marijuana.
 Violation of UCMJ, Article 128: at barracks 4312, MCAS, CHERPT, on or about 0225, 951010, ass a ulted PFC H_ by striking at him with his fist.
          Award: Forfeiture of $476 per month for 1 month, restriction and extra duty for 45 days, reduction to E-2. Not appealed.

 951017:  Counseling: Advised of deficiencies in performance and conduct ( i llegal drug involvement, specifically usage of marijuana as identified through urinalysis testing at NDSL JAX, batch #0684 . Drug identified: THC), and advised being processed for administrative discharge action.
951018:  Director, Substance Abuse Counseling Center , Marine Corps Air Station, Cherry Point, NC. Applicant determined not to meet DSM-IV criteria for marijua na (THC) abuse or dependence.

951127:  Applicant found qualified for discharge.

951128:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with a characterization of service of under other than honorable conditions . The factual basis for this recommendation was in-service substance abuse namely, marijuana, as evidenced by NAVDRUGLAB, JAXFL, msg 220505 SEP 95.

951128:  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.

951128:  Commanding Officer, Marine Wing Support Squadron 271, recommended Applicant’s discharge under other than honorable conditions by reason o f misconduct due to drug abuse, referencing Applicant’s in-service substance abuse namely, marijuana, as evidenced by NAVDRUGLAB, JAXFL, msg 220505 SEP 95.

951207:  Commanding Officer, Marine Wing Support Group-27 forwarded concurring that Applicant receive an other than honorable conditions by reason of misconduct due to drug abuse.
951219:  SJA review determined the case sufficient in law and fact.

951219:  GCMCA, Commanding General, 2d Marine Aircraft Wing, 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 19960103 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 assert ed that his discharge was inequitable “because it was based on one isolated incident in 36 months of service with no other adverse action . ” C ertain 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. 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 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 the reason for separation is based upon behavior, or omission, that constitutes a significant departure from the conduct expected of a Marine. T he Applicant’s service was marred by 2 retention warnings, 3 non-recommendations for promotion to Corporal, and 3 nonjudicial punishment proceedings for violations of Articles 86 (failure to go to appointed place of duty), 112a (drugs) and 128 (assault) of the UCMJ. Violations of Article 112a and 128 are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial . T he Applicant’s claim to “36 months of service with no other adverse action ” is factually incorrect. An upgrade to honorable would be inappropriate. Relief is therefore denied.

The Board found that Applicant’s “want to continue my education” was not grounds for changing his discharge . T he Board has no authority to upgrade a discharge for the sole purpose of enhancing 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. 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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