Search Decisions

Decision Text

USMC | DRB | 2006_Marine | MD0600171
Original file (MD0600171.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. MD06-00171

Applicant ’s Request
The application for discharge review was received on 20051103 . 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 personal appearance discharge review before a traveling panel. The Applicant designated the American Legion as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC at the Washington Navy Yard. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

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 issue, as stated on the application:
“ This Iraq War Veteran, returned state side, was due to be discharged, but paper work gotten held up. He went out and gotten drunk, was in a fight. ”

Applicant’s statement in support of application: (Taken from the DD Form 293, block 8)
 “Veteran’s paper work held up for terminal leave. He just was mad and drank too much.”

 Applicant's Remarks: (Taken from the DD Form 293, block 16)
 “This war Veteran just asking to be treated fair. He was upset about not getting leave and out of the Marines. Thank you for your consideration.”
Additional issues submitted by Applicant’s representative (American Legion):

 “Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), as it pertains to post-service conduct, in assessing the merits of this application.


In accordance with Title 32, CFR, section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue(s) and following statement in supplement to this Applicant’s petition.

Our review of the service record reveals that this former member maintained satisfactory Proficiency/Conduct markings of 4.2/4.1 and earned the NDSM, REB, and the Sea Service Deployment Ribbon. He was awarded the Good Conduct Medal on 20030423 Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by MARCORSEPMAN, Paragraph 6210.5.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because his exemplary service. He has submitted no additional documentation.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553, and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.
This case is now respectfully submitted for deliberation and disposition.”

Signed
S. S_
Military Review Boards
Representative
Documentation
In addition to the service and medical record s , the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s DD Form 214
 Appointment of Veteran’s Service Organization as Claimant’s Representative, dtd October 20, 2005
 American Legion Statement (Applicant) dtd April 21, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19990327 - 19990926       COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19990927              Date of Discharge: 20030822

Length of Service (years, months, days):

 Active: 03 10 26
         Inactive: None

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

Age at Entry: 1 7 (Parental Consent)

Years Contracted: 4
Education Level: 12                                 AFQT: 65

Highest Rank: LCpl                                   MOS: 3533

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 ( ) *                                Conduct: 4.1 ( ) *
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Sea Service Deployment Ribbon, Nati onal Defense Service Medal, Rifle Expert Badge (2 nd award)

* Extracted from the SJA Memorandum dated 030819.


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 :

Undated :         Pre-service waiver for M G D granted.
990323 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs .

011012:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of August because of immaturity. Applicant chose not to make a statement.
011101:  Applicant unauthorized absence status 0700-1200, 011101 ( in hands of civilian authorities due to incident involving underage drinking. ) (Extracted from counseling entry of 011203, below . )

011127:  Company NJP (Major) for violation of UCMJ, Article 86 : UA (AWOL) fr 0700, 011101 to 1200, 011101.
         Award: Forfeiture of $ 4 00 per month for 2 month s , restriction and extra duty for 3 0 days . Forfeiture of $4 00 for 2 months, restriction and extra duty for 7 days suspended for 6 months. N ot appealed.
011203:  Counseling: Advised of deficiencies in performance and conduct (Underage alcohol consumption and u nauthorized absence. On 011031 exercised poor judgment by consuming alcohol while under the legal drinking age of 21 years old. A rrested and jailed overnight causing an unauthorized absence status. This exercise of poor judgment culminated on 011126 (sic) with a nonjudicial punishment proceeding (NJP)) for violation of Article 86 (Unauthorized absence) of the Uniform Code of Military Justice (UCMJ).) . N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020506:  Applicant directed to report to the Alcohol Treatment Facility , Naval Hospital, Camp Lejeune, NC, for Intensive Outpatient processing on 020513.
020513:  Applicant screened at Alcohol Treatment Facility , Naval Hospital, Camp Lejeune, NC . Diagnosis not indicated in medical record.

020708:  Applic ant involved in alcohol related barracks incident , beating on 2 NCO’s barracks room door and directing provoking gestures towards them. (Extracted from NJP entry of 020731, below.)

020731 :  Battalion NJP for violation of UCMJ, Article 91 : On or about 020708, was arguing and beating on Cpl L_ and Cpl V_’s barracks room door.
Violation of UCMJ, Article 92 : On or about 020708, consumed alcohol under the legal drinking age.
Violation of UCMJ, Article 117 : On or about 020708, was provoking gestures with the intention to fight with them.
         Award: Forfeiture of $ 346 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 2 . Forfeiture of $346 for 1 month suspended for 6 months. Not appealed.
020930 :  NAVDRUGLAB, Jacksonville, FL, reported Applicant ’s urine sample, received 020925 , tested positive for cocaine.

021021:  Applicant admitted to Intensive Outpatient Treatment, Substance Abuse Rehabilitation Program, Naval Hospital, Camp Lejeune, NC.

021107:  LCDR M. J. O_, PSY.D, MSC, USNR, Clinical Director, Substance Abuse Rehabilitation Program, Naval Hospital, Camp Lejeune, NC: Applicant completed program. Discharge diagnosis: Alcohol abuse. Continuing care recommendations: Meet weekly with SACO for next 12 months to monitor progress. Attend 2 AA meetings a week. Complete the state required treatment for his DWI. Process for administrative separation for the illegal drug use.

030423:  Battalion NJP for violation of UCMJ, Article 112a: On or about 020905, did wrongfully use cocaine at an unknown location.
 Violation of UCMJ, Article 134: On 020924, did commit an indecent assault upon PFC H_ and Pvt P_, a person not his wife, with intent to gratify his sexual desires.
Violation of UCMJ, Article 134: On 020924, had intent to commit rape upon PFC H_ by holding her down and kissing her neck.
         Award: Forfeiture of $575 per month for 2 months, extra duty for 60 days, reduction to E-1. Not appealed.

 030506:  Company Commander , Bravo Company requests Commanding Officer, 2d Transportation Battalion initiate administrative separation proceedings per Marine Corps Order 1900.16. Company Commander’s comments: Applicant has accepted full responsibility for his action. His performance during wor k ing hours in garrison and his performance 24/7 while deployed with me to Kuw ai t and Iraq (since January, 2003) has been uniformly outstanding. I believe his issues in garrison stem from irresponsible use of alcohol. This does not excuse his behavior, but I believe it provides extenuation for the ultimate decision on his administrative separation. Applicant’s EAS is 26 September 2003. The proximity of his EAS and his performance while deployed, which included significant contribut i ons to mission accomplishment as a Qua lity Control Clerk and a member of Trail Maintenance on multiple susta i nm e n t c onvoys in Iraq support suspension of administrative separation and the opportunity to leave the Marine Corps with an honorable discharge.

030523 :  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with a characterization of service as under other than honorable conditions. The factual basis for this recommendation was the NAVDRUGLAB JACKSONVILLE FL message dated 301935Z September 2002.

030523 :  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights .

030815 :  Commanding Officer, 2d Transportation Support Battalion , recommended Applicant ’s discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was incident of illegal drug use as identified in enclosure (4) (note: NavDrugLab msg, Jacksonville, FL 301935Z Sep 02) and Applicant’s overall suitability for retention. Commanding Officer’s comments: “ On 23 May 2003, the respondent was advised by the basic correspondence of the proposed processing for administrative discharge in accordance with the reference. The respondent has acknowledged receipt of his rights and has indicated his decision as to those rights in his acknowledgement of rights. Based upon enclosures (3) through (9), Applicant has demonstrated his inab ility to effectively perform in his military occupational specialty. Applicant’s actions represent a total disregard for Marine Corps core values and the rules and regulations central to good order and discipline. Applicant ’s failure to act in full accordance with those standards of performance that we expect of all Marines , has compromised Applicant’s integrity. The sanctity and preservation of the institution of command and that of its inherent and most essential element, the trust and confidence in the commander from subordinates and superiors, was breeched by Applicant’s misconduct and mandate Applicant’s processing for administrative separation. ”
030819 :  SJA review determined the case sufficient in law and fact.
030820 :  GCMCA, Commander, 2d Force Service Support Group , 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 20030822 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 Board presumed regularity in the conduct of governmental affairs (D).
In regards to the Applicant ’s issue that Applicant was “due to be discharged, but paper work gotten held up. He went out and gotten drunk, was in a fight ” and that “He just was mad and drank too much”, the Board fo und that t here is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for Marines who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

In the Applicant’s issue, as raised by his representative, that his discharge be upgraded “because his (sic) exemplary service” the Board found that the positive aspects of Applicant’s service do not warrant a different characterization of service. 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. The Applicant’s service was marred by a retention warning for underage drinking and unauthorized absence, and 3 nonjudicial punishment proceedings for violations of Articles 86, 91, 92, 112a, 117, and 134 of the UCMJ. Assessment of Applicant’s overall service indicates that an upgrade would be inappropriate. The NDRB advises the Applicant that certain serious offenses warrant separation from the Marine Corps in order to maintain proper order and discipline. Violations of Article 91, 92, 112a and 134 are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial. The Board specifically notes that Applicant’s representative’s statement that Applicant “was awarded the Good Conduct Medal on 20030423” is incorrect. The reference “ Good Conduct Medal period commences 20030423” on Applicant’s DD 214 indicates the new start date , based on Applicant’s last NJP, of the 3-year period of good behavior required for a Marine to receive that Medal. Relief is therefore denied.

In the Applicant’s issue, as raised by his representative, that the Board consider SECNAVINST 5420.174D, Part IV, Paragraph 403.m.(7) as it pertains to Applicant’s post-service conduct, the Board noted that the cited provision refers to presumptions concerning court-martial specifications. As the Applicant was not the subject of court-martial proceedings, those provisions are not applicable to Applicant’s case. However, 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, and 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 on that basis is therefore 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 .

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

Similar Decisions

  • USMC | DRB | 2005_Marine | MD0500665

    Original file (MD0500665.rtf) Auto-classification: Denied

    920912: Applicant charged with driving while impaired, Level 2.921104: NJP for violation of UCMJ, Article 81: Not appealed.921113: Consolidated Drug and Alcohol Center, Marine Corps Base, Camp Lejeune: Applicant evaluated and found to an alcohol abuser.930801: Applicant to unauthorized absence 1200, 930801.930806: Applicant from unauthorized absence 0530, 930806 (4 days/surrendered).930818: Consolidated Drug and Alcohol Center, Marine Corps Base, Camp Lejeune Consultation report: Diagnostic...

  • USMC | DRB | 2005_Marine | MD0501533

    Original file (MD0501533.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Issues, as stated No issues for consideration were submitted by the Applicant.Issues submitted by Applicant’s counsel/representative (American Legion): “ Equity Issue: Pursuant to USC 874 (b) (UCMJ, Article 74) and in accordance with SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), we request, on behalf of this former member, the Board’s clemency relief with an up-grade of his characterization of service on the basis of his post-service...

  • USMC | DRB | 2006_Marine | MD0600800

    Original file (MD0600800.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). Decisional Issues: Propriety – Basis for discharge Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (State Director of Veterans Affairs-6)Excerpts from Service Record (11 pgs) PART II - SUMMARY OF SERVICE Prior Service (component, dates...

  • USMC | DRB | 2005_Marine | MD0500783

    Original file (MD0500783.rtf) Auto-classification: Denied

    The documentation and statements provided by the Applicant were not sufficient to overturn the presumption that the Applicant was alcohol rehabilitation failure. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. 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...

  • USMC | DRB | 2005_Marine | MD0501459

    Original file (MD0501459.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). Mandatory processing for separation is required for Marine Corps who abuse illegal drugs. 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...

  • USMC | DRB | 2005_Marine | MD0500613

    Original file (MD0500613.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. Mandatory processing for separation is required for Marines who abuse illegal drugs. 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

  • NAVY | DRB | 2006_Navy | ND0600439

    Original file (ND0600439.rtf) Auto-classification: Denied

    ND06-00439 Applicant’s Request The application for discharge review was received on 20060201. Neither the evidence of record, nor the documentation provided by the Applicant, demonstrate that the Applicant referred himself to treatment for illegal substance abuse. The Board found the Applicant’s summary court-martial conviction for illegal substance abuse sufficient misconduct to warrant an under other than honorable conditions characterization.

  • USMC | DRB | 2006_Marine | MD0600338

    Original file (MD0600338.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. ]990416: NJP for violation of UCMJ, Article 92: In that Lance Corporal M_ A. D_(Applicant), did, on or about 990415, fail to obey a lawful regulation, to wit: Paragraph 5, Marine Corps ALMAR 5/99 dtd 231923 Jan 99, by not consenting to the Anthrax Immunization Shot. Not appealed.991220: Commanding Officer, Headquarters Company, 6 th Marine Regiment, 2d Marine...

  • USMC | DRB | 2003_Marine | MD03-00812

    Original file (MD03-00812.rtf) Auto-classification: Denied

    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. Chronological Listing of Significant Service Events :000328: NJP for violation of UCMJ, Article 92: Disobeyed lawful order from SSgt K_ not to drive his vehicle while his license was suspended.Awarded forfeiture of $273.00, restriction and extra duties for 14 days (all suspended...

  • NAVY | DRB | 2004 Marine | MD04-01441

    Original file (MD04-01441.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Competent medical authority diagnosed the Applicant as being alcohol and cannabis dependent (in remission) on 19920408 and recommended that he attend Level III treatment and three Alcoholics Anonymous meetings per week in addition to meeting weekly with the SANCO until treatment. 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...