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USMC | DRB | 2006_Marine | MD0600131
Original file (MD0600131.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. MD06-00131

Applicant’s Request
The application for discharge review was received on 20051020. 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 20060831 . 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:

 “A foolish decision on my part to try a drug, I showed integrity and admitted guilt hoping this would grant leniancy, not knowing punishment would be as extreme as being discharged. There were several other Marines with multiple drug charges, I did it once and never again. I am a good citizen and have been. I would also like to re - enlist.
Under current situations I would not have been discharged, I also would have never done what I did. I received a meritorious promotion from boot camp & was 1 st in my Schools Battalion until the final test, which I missed promotion to E-3 by 1/10 th of a point. I am a good citizen and was above average marine, a natural leader. I believe I could still be a positive upstanding M arine i f I get the chance. I wo rk full time, have been married nine years and get drug tested ranomly, I have no children.”
Applicant’s statement in support of application: (Taken from the DD Form 293, block 8)
 “ I don’t have much evidence other than some college. I have no vehicle violations, or criminal charges. Again am an upstanding citizen. I am on the list to be hired for the Portland Fire Department. ”

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)    19940223 - 19940228      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19940301             Date of Discharge: 19950302

 Length of Service (years, months, days):

 Active: 01 00 02
          Inactive: None

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

 Age at Entry: 23

 Years Contracted: 4

 Education Level: 12                                 AFQT: 55

 Highest Rank: LCpl                                  MOS: 1833

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (5)                                Conduct: 3.9 (5)

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


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 :

940218:  Applicant acknowledges preservice marijuana use. “I have t ri ed marijuana between 9/87 -10/90. I understand the Marine Corps policy on drugs. I do not intend any further use.”
940223:  CO, 12 th MCD enlistment waiver authorized.

 950113:  Battalion NJP for violation of UCMJ, Article 112a: At CamPen or in the surrounding community, within seven days prior to 27 Dec 94, did use methamphetamines.
         Award: Forfeiture of $400 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Not appealed.

 950130:  Medical evaluation by Captain B . L . G_, MC, USN, Naval Hospital, Camp Pendleton, CA .
 Impression: Amphetamine abuse. Not drug dependent.
          Recommendation: 1) Process for separation per MCO P5300.12 and counseled on UA. 2) Level I Prevent pending ADSEP.
950130:  Applicant signed Veterans Administration Statement of Understanding and declined treatment.

 950201:  Applicant notified of inten ded recommendation for discharge by reason of misconduct due to drug abuse with a characterization of service as under other than honorable conditions. The specific reason for separation was Applicant’s documented use of a controlled substance.

950201:  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.

 950201:  Commanding Officer, Commanding Officer, 3d Assault Amphibian (-) recommended to Commanding General, 1 st Marine Division that Applicant be discharged with a characterization of service of Other than Honorable conditions. The basis for this recommendation was Applicant’s nonjudicial punishment which evidenced his illegal use of drugs. Commanding Officer comments: Applicant is not capable of further honorable service.

950224:  SJA review determined the case sufficient in law and fact.

 950227:  GCMCA, Commander, 1 st Marine Division (Rein), FMF directed the Applicant be separated by reason of misconduct due to drug abuse and that the characterization of service shall be Under Other Than Honorable Conditions.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950302 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 implies that his discharge was inequitable because other servicemembers had multiple drug charges, in contrast to his single instance of abuse. The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps. The Applicant received nonjudicial punishment for violation of Article 112a of the UCMJ, specifically for his illegal use of methamphetamine. The evidence reviewed supports the conclusion that the Applicant did use drugs, that separation from the Marine Corps was appropriate, and that an Other than Honorable discharge was warranted. As such, relief is denied.

The Applicant indicates that “under current situations”, he would not h ave been discharged. It is unclear whether the “current situation” to which Applicant refers is an alleged change in service policy or current practice regarding drug abuse, or a reference to his current personal post-service circumstances and behavior. The Board considered both possible meanings. The NDRB may provide relief when it determines that a change in policy by the military service of which the Applicant is a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge and/or when it determines that there is substantial doubt that the A pplicant would have received the same discharge if relevant current policies and procedures had been available to the Applicant at the time of the discharge proceedings under consideration. The Board determined that the Marine Corps’ “zero tolerance” policy regarding drug abuse, the requirement for mandatory processing for separation of drug abusers, and the standards for determining characterization of discharge have remained consistent from the time of Applicant’s discharge to the present. Relief is not warranted.

The Applicant makes a number of statements concerning his post-service good behavior. The Applicant’s discharge characterization accurately reflects his service to this country. Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question. No impropriety or inequity occurred during the Applicant’s enlistment. Additionally, 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 the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade any less than Honorable discharge. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct. The Applicant’s statements concerning post-service conduct, without documented evidence, were found not to mitigate the misconduct, which precipitated the discharge. Relief not warranted.

The Applicant indicated a desire to re-enlist. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. Nor is the NDRB is authorized to change a reenlistment code. Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 P1900.16D), 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 .

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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