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USMC | DRB | 2006_Marine | MD0600338
Original file (MD0600338.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. MD06-00338

Applicant ’s Request
The application for discharge review was received on 20051223 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable . The Applicant requests a personal appearance discharge review before a traveling panel closest to Los Angeles, California . The Applicant designated the American Legion as the representative on the DD Form 293. The Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington National Capital Region. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing. The Applicant elected to a record review.

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 and an attached letter to the Board:
“ Concerning upgrade of discharge and benefits,

Good Afternoon I would like to declare an upgrade of discharge and benefits on my behalf for the reasons following: I have been an extraordinary citizen after my discharge by enrolling in college and maintaining a hard work ethic on the job ever since. My hobbies have been to participate in four marathons in 2004 and presently I am training for future events which include my first triathlon. I have kept the strong Marine Corp tradition honor, courage and commitment.

 During my court hearing there were no witnesses or jury. Also my attorney was a 2 nd lieutenant with little experience. I completed well over half of my contract while being a squad leader as an Anti-tank assault man in 3/6 Kilo Co. Camp Lejeune, NC 28542(1997-2000). I was a corporal at the time before I refused the anthrax shot. I am proud to have volunteered for my country and I want my future children to know that I am an honorable Marine.
Consider my plea for an upgrade for an honorable discharge. God bless America. Thank You.

M _ D _ Jr ( Applicant ) ”

Representative submitted no issues.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’s DD Form 214 (Service 7)
Picture of Applicant after the Coca-Cola Zero Rock ‘ n ’ Roll Marathon , undated
Picture of Applicant at the City of Los Angeles Triathlon, dtd September 11, 2005
 Picture of Applicant in the LA Marathon XIX in 2004 , undated
Picture of Applicant at the Long Beach Internationa l City Bank Marathon , undated
Picture of Applicant in Pacific Shoreline Marathon , undated
Applicant ’s Certificate of completion on Coca-Cola Zero Rock ‘n’ Roll Marathon, dtd June 5, 2005
 Applicant ’s Safety Certificate from Kett Engineering Corporation for 2000 Hours of accident free driving, dtd August 15, 2005
 Applicant ’s certificate of completion of Acura L.A. Bike Tour, dtd March 6, 2005
 Letter from S_ C_, Assistant Vice President, Acura Automobile Division , American Honda Motor Co, Inc. to “ Bicycling Enthusiast ” , dtd March 6, 2005
Letter from Dr. W_ A. B_, President, The City of Los Angeles Marathon, to “Acura L.A. Bike Tour Cyclist”, und ated
Applicant ’s unofficial transcript from Cerritos Community College District, dtd September 12, 2005 (3 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19950807 - 19960701       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19960702              Date of Discharge: 20000407

Length of Service (years, months, days):

 Active: 0 3 0 9 0 6 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 66 day s (11 days of which in hands of civilian authorities)
         Confinement:              48 day s

Age at Entry: 18
Years Contracted: 4
Education Level: 12                                 AFQT: 75

Highest Rank: C pl                                    MOS: 0351

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NA*                                     Conduct: NA*
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal, Navy Unit Commendation

*Not Available


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 :

950804 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
970302:  Applicant to unauthorized absence at 0530 on 970302 .

 970307:  Applicant from unauthorized absence at 1200 on 970307 ( 5 days/surrendered).
970307:  NJP for violation of UCMJ, Article 86: In that PFC D_( Applicant ), did, on or about 0530, 970302, without authority, absent himself from his unit, to wit: KILO CO., and did remain so absent until he surrendered on or about 1200, 970307.
         Award: Forfeiture of $ 21 0 .00 per month for 1 month, restriction and extra duty for 14 days . Forfeiture suspended for 6 months. Not appealed.
970709:  Acknowledged understanding of eligibility but not recommended for promotion to Lance Corporal for the month of July because of a recent NJP. Applicant chose not to make a statement.
970808:  Acknowledged understanding of eligibility but not recommended for promotion to Lance Corporal for the month of August because of a recent pg 11, due to being UA. Applicant chose to make a statemen t.
[Administrative note: No Applicant statement found in service record. ]

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.
         Award: Forfeiture of $ 589.00 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 3 . Not appealed.
          [Administrative note: Subsequent to this NJP the involuntary Anthrax Immunization Program was held to be illegal absent informed consent or presidential waiver. The NDRB did not consider this NJP in reaching its decision in Applicant’s case.]

990602:  Applicant to unauthorized absence at 0 7 00 on 990602 .
990722:  Applicant from unauthorized absence at 0030 on 990722 ( 50 days/surrendered).
991007:  Special Court Martial
          Charge I: V iolation of the UCMJ, Article 86:
         Specification: Was UA from 990602-990722.
         Findings: to Charge I and specification thereunder, guilty.
         Sentence: Confinement for 60 days , forfeiture of $ 3 00 .00 per month for 2 month s , reduction to E- 2 .
991007:  Applicant to confinement.

991124:  Applicant early released from confinement (48 days) for Thanksgiving liberty period.
         [Extracted from Commanding Officer, Headquarters Company, 6 th Marines, 2d Division, Camp Lejeune, NC , ltr, dated 991220.]

991127:  Applicant arrested by civilian authorities for possession of marijuana.
         [Extracted from Commanding Officer, Headquarters Company, 6 th Marines, 2d Division, Camp Lejeune, NC , ltr, dated 991220.]
991206:  NAVDRUGLAB, Jacksonville, FL, msg 061746Z DEC 99 reported Applicant ’s urine sample, received 991130, tested positive for THC.

 991213:  NJP for violation of UCMJ, Article 112a : Was caught with possession of marijuana on 991127, at 0543, in Tyrone, GA.
         Violation of UCMJ, Article 112a: Failed a urinalysis for THC on Dec 99.
          Award: Forfeiture of $ 479. 00 per month for 1 month, restriction and extra duty for 45 days, reduction to E- 1 . Not appealed.
991220:  Commanding Officer, Headquarters Company, 6 th Marine Regiment , 2d Marine Division, Camp Lejeune, NC , recommended to Commanding General, 2d Marine Division via Commanding Officer, 6 th Marine Regiment, that Applicant be discharge d by reason of wrongful use of a controlled substance, marijuana with a characterization of service as under other than honorable conditions. The factual basis for this recommendation was respondent’s violation of article 112a under the UCMJ, wrongful use of a controlled substance (marijuana). Commanding Officer’s comments: “ PVT D _ (Applicant)’s history reflects behavior that is inconsistent with the Marine Corps standard. On 970307 SNM received NIP for violation of Article 86, Unauthorized Absence. On 990416 SNM received N JP for violation of Article 92, Disobedience of a Lawful Order, PVT D _ (Applicant) refused the Anthrax Immunization. On 990603 PVT D _ (Applicant) went UA and did not return until 52 days later. SNM received a Special Court-Martial for this offense. PVT D _ (Applicant) was released one day early from confinement so he could go home for the Thanksgiving holiday. While on liberty, PVT D _ (Applicant) was arrested for possession of marijuana. When SNM (Applicant) returned from liberty, he consented to a urinalysis and tested positive for marijuana (see enclosure 1). On 991213 PVT D _ (Applicant) received N JP for violation of Article 1 l2a, the wrongful use and possession of marijuana. Private D _ (Applicant) has exhibited no potential for continued military service because of his defective behavior, lack of respect for authority, and misconduct. Therefore, I recommend that Private D _ (Applicant) be immediately separated with an Other than Honorable Discharge. ”

991221 :  Applicant notified of intended recommendation for discharge by reason of wrongful use of a controlled substance, marijuana with a characterization of service as under other than honorable conditions . The basis for this recommendation is Naval Drug Lab message dated R 242102Z Dec 99 (sic). Applicant informed the least favorable character of service possible was as under other than honorable conditions.

991222 :  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

000202 :  Commanding Officer, 6 th Marine Regiment , forward s recommendation, recommending that Applicant be discharge d by reason of drug abuse with a characterization of service as under other than honorable conditions. Commanding Officer’s comments: “ Private D _ (Applicant) joined Headquarters Company, 6th Marines in August 1999. He was declared non-deployable due to the fact he was pending a Special Court Martial (SPCM) for violation of Article 86, of the Uniform Code of Military Justice. Since his SPCM, Private D _ (Applicant) has violated Articles 92 and 112a. His chain of command recommends he be separated. I concur with his chain of command and believe he should be discharged as soon as possible with an under other than Honorable discharge. ”

000309:  Applicant to unauthorized absence.
[Extracted from DD Form 214, Block 29 and Time Lost 905 Remark Page .]
000319:  Applicant from unauthorized absence (11 days) .
[Extracted from DD Form 214, Block 29 and Time Lost 905 Remark Page .]
000321:  Alcohol Treatment Facility, Camp Lejeune, NC, Consultation Sheet, LCDR M. A. P_, MSC, USN, Clinical Psychologist: 21 year old male (Applicant) e valuated t o rule out substance abuse/dependence. The result of the evaluation is as follows: Drug abuse.
The following recommendations are made: No treatment indicated at this time. Individual is found psychologically fit for full duty and returned to same. Recommend SNM be processed for administrative separation. Recommend treatment at the ARD Norfolk, VA, if retained.
000321:  Applicant refused treatment for alcohol/substance abuse.

000330 :  SJA review determined the case sufficient in law and fact.

 000403 :  GCMCA, Commanding General, 2d Marine Division, II Marine Expeditionary Force, Camp Lejeune, NC , directed the Applicant 's discharge by reason of misconduct due to drug abuse with a characterization of service as under other than honorable conditions .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000407 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 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. The Board did note an administrative error in the Applicant’s separation processing. The record indicates that Applicant was notified that the basis for his Commanding Officer’s recommendation for administrative separation was “Naval Drug Lab message dated R 242102Z Dec 99” when in fact the relevant message was R 061746Z DEC 99. Nevertheless, the NDRB is convinced that this error was not prejudicial to the Applicant and therefore affords him no relief. The Applicant’s notification informed him that he was being recommended for drug abuse, and the Applicant had prior to notification received nonjudicial punishment for the drug possession and use. The Board determined that Applicant was clearly on notice that he was being administratively separated for misconduct due to drug abuse and that the Applicant would not have been misled in any way had he chosen to exercise his administrative separation rights. Thus relief based upon this error is not warranted. Relief denied.

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. 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 2 nonrecommendations for promotion, 2 nonjudicial punishment (NJP) proceedings for violations of Articles 86 and 112a of the UCMJ (The Board did not consider the Applicant’s NJP for refusing the anthrax immunization shot) and a Special Court-Martial for violation of Article 86. 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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

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. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 31 August 2001.

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) Proce dures 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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