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USMC | DRB | 2006_Marine | MD0600291
Original file (MD0600291.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. MD06-00291

Applicant’s Request
The application for discharge review was received on 20051205 . 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 20061019 . 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:
“ Requested discharge upgrade based on service record and four years of honorable service completed .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter to Senator R_ L_, undated
 Applicant’s DD Form 214
 Certificate of Achievement from 1 ST Corps Support Command, dtd February 19, 2003
Certificate of Physical Achievement, United States Marine Corps, undated
Certificate of Commendation, United States Marine Corps, dtd September 30, 2002
 Honorable Discharge Certificate, United States Marine Corps, dtd May 21, 2003
Certificate of Reenlistment, dtd May 22, 2003
NATO Medal Certificate for the period of July 26, 2002 through August 25, 2001
 NAVMC 184, C ourse Subject List
Appointment to Corporal Letter, dtd August 1, 2002
Certificate of Service, Marine Corps Security Force Company, Bahrain, for the period January 29, 2001 to March 5, 2001
 Letter of Commendation, from CAPT T. F. V_, USN, Supervisor of Shipbuilding, Conversion and Repair, Newport News, dtd November 5, 2002
 NCO Creed
 Certificate of Completion for Basic Security Guard Course (M4V), dtd August 12, 1999
 MCTFS Record of Service (2pgs)
 Final Grades, Spring 2005, Indiana State University, dtd May 11, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19980805 - 19990119       COG
         Active: USMC     19990120 - 20030521       HON
Period of Service Under Review :
Date of Enlistment: 20030522              Date of Discharge: 20040211

Length of Service (years, months, days):

 Active: 0 0 0 8 2 0
         Inactive: None

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

Age at Entry: 25

Years Contracted: 4

Education Level: 12                                 AFQT: 54

Highest Rank: CPL                                    MOS: 8152/0331

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3 . 1 ( 3 )              Conduct: 2 . 8 ( 3 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Expeditionary Medal Marine Corps, National Defense Service Medal, Kosovo Campaign Medal, Sea Service Deployment Ribbon with 1 star, Armed Forces Expeditionary Medal, Certificate of Appreciation, Letter of Commendation, Certificate of Commendation, Sharpshooter Rifle Badge, S harpshooter Pistol 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 :

030522 :  Reenlisted this date for a term of 4 years.

030804:  Applicant transferred from 2d FAST Company, Marine Security Force Battalion, Yorktown, VA to 1 st Battalion, 5 th Marine Regiment, 1 st Marine Division, Camp Pendleton, CA.

 030806 :  NAVDRUGLAB, Jacksonville, FL , msg 061110Z AUG 03, reported to 2d FAST Company, Marine Security Force Battalion, Yorktown, VA that Applicant’s urine sample, received 0 30804 , tested positive for cocaine .
030908:  Applicant joined to 1 st Battalion, 5 th Marine Regiment, 1 st Marine Division, Camp Pendleton, CA.

 030922:  NAVDRUGLAB, Jacksonville, FL, msg 061110Z AUG 03 forwarded to 1 st Battalion, 5 th Marine Regiment.
         [Extracted from Service Record Page 11 Counseling entry, dtd 031007.]

 031007 :  Counseling: Advised of deficiencies in performance and conduct ( Positive results of Drugs in Urine Sample Test IAW MFL DMDS USER msg 061110z Aug 03 Reported received 030922 . Applicant sample tested positive for Cocaine, which is not tolerated ) . N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

031013:  Applicant submits letter acknowledging understanding that United States Marine Corps policy on drug use is that of no tolerance, and admitting violating policy.
0 31114 :  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 Marine Corps Policy on drug abuse and the fact that Applicant found guilty of testing positive for the use of cocaine as a result of a urinalysis conducted on 030721.

031114 :  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to include written statements in rebuttal to this proposed separation.

031117:  Commanding Officer, 1 st Battalion, 5 th Marine Regiment forwards recommendation to Commanding General, 1 st Marine Division (REIN) via Commanding Officer, 5 th Marine Regiment, that Applicant be administratively separated from the United States Marine Corps for misconduct due to drug abuse with a characterization of service as under other than honorable conditions. Commanding Officer’s comments: Corporal M_ (Applicant) joined this command on 030909. He tested positive for co c aine during a urinalysis conducted at h i s pre v ious command. Resu l ts of that drug test were later forwarded to this command where I have initiated disciplinary and administrative separation proceedings. My observation of this Marine is very limited within this command due to the short time between his arrival and notification of his drug involvement. Prior to arriving at this command Corporal M_ (Applicant)’s average Pro/Con marks are 4.4/4.3. However, due to his disregard for the absolute prohibition agai n st drug use in the Marine Corps and demonstrated lack of maturity, I believe this Marine has no potential for further service. Noncommis s oned Officers have a great responsibility to lead by example and Corporal M_ (Applicant) has failed completely in this endeavor.

031205:  Applicant found fit for separation by competent medical authority .
031215 :  Commanding Officer, 5 th Marine Regiment, forwards recommendation to Commanding General, 1 st Marine Division , recommend ing that Applicant be discharge d by reason of drug use with a discharge characterization of other than honorable conditions. Commanding Officer’s comments: “ Lance Corporal M_ (Applicant) joined 1 st Battalion, 5 th Marines on 030908. Prior to joining the R egiment, his previous command conducted a urinalysis, which he participated in before he departed the unit. His results returned positive for use of cocaine and were forwarded to his command for proper disciplinary action . Lance Corporal (Applicant) was pending a special court martial for this offense. He avoided a special court martial via a pre-tri a l agreement: plead guilty to the charge of 112a and waive his Administrative Separation Board. At Battalion NJP, he was reduced to Lance Corporal, forfeiture of wages, and restriction. His record indicates that he also has a disciplinary infraction for driving under the influence of alcohol for which he received Company Non-Judicial punishment on 010328. It should be noted that he enlisted with a drug waiver. After reviewing the chain of command’s recommendations, his record of service and a personal interview, I recommend approval of this administrative separation. ”

0 40122 :  SJA review determined the case sufficient in law and fact.
040129 :  GCMCA, Commanding General, 1 st Marine Division directed the Applicant's discharge by reason of misconduct due to drug abuse, per paragraph 6210.5 of the reference with characterization of service as under other than honorable conditions .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040211 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).

In the Applicant’s issue, the Board found there 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 Applicant’s previous period of service, for which he received a characterization of honorable, does not mitigate his misconduct in the period of enlistment in question. 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.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 sufficient 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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