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USMC | DRB | 2006_Marine | MD0600321
Original file (MD0600321.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. MD06-00321

Applicant’s Request
The application for discharge review was received on 20051213 . 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 20061025 . 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 was young and impetuous. I did not / could not adapt to Marine Corps life. I feel it is an honorable field b ut not for me. My dad is a Navy VET (Vietnam) my mom 28 yr Army career soldier but again I could not find my place with the military. Thank you .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20000122 - 20001012       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20000717              Date of Discharge: 20031219

Length of Service (years, months, days):

 Active: 0 3 0 5 0 2 ( d oes not exclude lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 8 0
         Confinement:              None

Age at Entry: 19

Years Contracted: 4

Education Level: 1 2                                  AFQT: 36

Highest Rank: LCpl                                   MOS: 0311

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3 . 8 ( 11)                      Conduct: 3 . 7 ( 11 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): (CR) Combat Action Ribbon (01), (SD) Sea Service Deployment Ribbon (02), (NN) National Defense Service Medal (01), (PU) Presidential Unit Citation (01).


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 :

000121:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
010619:  Applicant to unauthorized absence at 0700, 010619.

010719:  Applicant d eclared a deserter .

010722:  Joined IHCA at 0230, 010722 while in a deserter status .

010723:  Released from IHCA.

010725:  To confinement.

010729:  Released from confinement.

 010815:  NJP for violation of UCMJ, Article 86: UA, 0700, 010619 – 0230, 010722, from HqSvcCO, MarBks, WashDC 20390-5000.
 Award: Forfeiture of $482.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. Not appealed.
010817:  Counseling: Advised of deficiencies in performance and conduct (Battalion non-judicial punishment dated 010815 for violation of Art 86 UCMJ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020425:  Applicant to unauthorized absence at 0530 on 020425.

020514:  Applicant from unauthorized absence at 0530 on 020514.

 020508:  M arijuana pipe found in Applicant’s barracks room. [Extracted from Executive Officer, H&S Company, 3d Battalion 1 st Marines, letter of 030821.]
0205xx:  Missed movement to “SOC-EX.” [Extracted from Executive Officer, H&S Company, 3d Battalion 1 st Marines, letter of 030821.]

 020618:  NJP for violation of UCMJ, Article 86: In that Pvt A_, did on or about 0530, 020425, without authority, absent himself from his unit, to wit: Company K, Battalion Landing Team 3/1, and did remain so absent until on or about 0530, 020514.
         Award: Forfeiture of $552.00 per month for 2 months, restriction for 60 days. Not appealed.
020620:  Counseling: Advised of deficiencies in performance and conduct (Art 86 UA), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
03022 3 :  NJP for violation of UCMJ, Article 123a: In that LCpl A_ (Applicant), did on or about 021228 to on or about 020128, with intent to defraud and procurement of articles wrongfully and unlawfully make 15 checks to several businesses, a total of $1,885.78, then knowing that he, LCpl A_, the maker thereof, did not have or would not have sufficient funds in or credit with his bank for the payment of the said check in full upon their presentment. Violation of UCMJ, Article 134: In that LCpl A_, being indebted to Militar y Star Credit in the sum of $1, 300 .00 from on or about 021228 to on or about 020128, dishonorably fail to pay said debt.
         Award: Forfeiture of $645.00 per month for 2 months, restriction for 60 days ( restriction and forfeiture suspended for 6 months), reduction to E-2. Not appealed.
030624:  Applicant to unauthorized absence at 0700 on 030624.

030721:  Applicant from unauthorized absence at 0700 on 030721.

030801:  NAVDRUGLAB, San Diego, CA reported Applicant’s urine sample, received 030730, tested positive for THC.
030 804 :  Forfeiture of pay and restriction awarded at NJP on 030223 vacated due to continued misconduct.
030 804 :  NJP for violation of UCMJ, Article 86: In that Pvt A_, did on or about 0700, 030624, without authority, absent himself from his unit, to wit: Company K, 3d Battalion, 1 st Marines, and did remain so absent until on or about 0700, 030721.
         Award: Forfeiture of $575.00 per month for 2 months (suspended for 6 months at which time, unless sooner vacated will be remitted without further action), restriction and extra duties for 45 days, reduction to E-1. Not appealed.
030804:  Counseling: Advised of deficiencies in performance and conduct (Pattern of Misconduct), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030805:  3/1 BAS, Medical Evaluation. Applicant referred fo r substance abuse/psych eval. Assessment: Substance Abuse. Plan: Self-Referral for Substance Abuse – Patient will [unreadable]. Recommend Admin Sep.
030808:  NJP for violation of UCMJ, Article 112 a : In that Pvt A_ (Applicant), did on or about 030805, wrongfully use THC, a controlled substance.
 Award: Forfeiture of $336.00 per month for 1 month (suspended for 6 months, at which time, unless sooner vacated, will be remitted without further action), restriction for 14 days. Not appealed.
030808:  Counseling: Advised of deficiencies in performance and conduct (Drug Abuse), necessary corrective actions explained, sources of assistance provided and being advised processed for administrative separation.

0 30808 :  Counseling: Advised of deficiencies in performance and conduct ( ART 112A ), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative separatio n.
0 30808 :  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was Applicant’s positive urinalysis results. Applicant informed the least favorable character of service possible was as under other than honorable conditions.

0 30808 :  Applicant advised of rights and having consult ed with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
030814:  Applicant physically qualified for separation.

0 31015 :  Commanding Officer, 3 d Battalion, 1 st Marines , recommended that Applicant be discharge under other than honorable conditions by reason of drug abuse . Commanding Officer’s comments: “Private A_ (Applicant) has demonstrated, albeit inconsistently, that he has potential for further honorable service. He has served at Marine Barracks 8 th & I in the Silent Drill Platoon, and served his country honorably during Operation Iraqi Freedom. Unfortunately, Private A_ does not desire to make an effort to continue his service. I confirmed this when I conducted my final interview with him on 031008. During this Interview Private A_ again reiterated his strong desire to be discharged as soon as possible. I believe that we have made every reasonable effort to convince Private A_ that he had the potential to salvage his enlistment and to complete his service honorably. I therefore concur with the recommendations of his chain of command and echo his Company Commander’s recommendation that Private A_ be expeditiously discharged.”

0 31113 :  SJA review determined the case sufficient in law and fact.
031120 :  GCMCA, Commanding General, 1 st Marine Division , 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 20031219 by reason of misconduct due to drug abuse (A and B ) 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 ( C and D ).

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 three retention warnings and five nonjudicial punishment proceedings for violations of Articles 86, 112a, 123a, and 134 of the UCMJ. One of the Applicant’s violations of Article 86 of the UCMJ, for unauthorized absence for 34 days, is the commission of a serious offense. The Applicant’s violations of Articles 112a, 123a and 134 are also serious offenses. Serious offenses are punishable by punitive discharge if awarded as part of the sentence upon conviction at a special or general court-martial. 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant implies that his discharge is inequitable because he was “young and impetuous” and that he “could not find [his] place with the military.” While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either 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 any 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. 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. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86, unauthorized absence for more than 30 days, Article 112a, wrongful use of a controlled substance, Article 123a, making drawing or uttering checks without sufficient funds or Article 134, making and uttering worthless checks by dishonorably failing to pay .

C . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

D . 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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