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USMC | DRB | 2006_Marine | MD0600399
Original file (MD0600399.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. MD06-00399

Applicant’s Request
The application for discharge review was received on 20060111 . 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 20061130 . 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 attached letter to the Board:
“Dear Discharge Review Board:
         The following issues are the reasons I believe my discharge should be upgraded to Honorable. If you disagree, please explain in detail why you disagree. The presumption of regularity that you might normally permit you to assume that the service acted correctly in characterizing my service as less than Honorable does not apply to my case because of the evidence I am submitting.
         My Marine Corps. Career started on November 18, 2004 when I entered Basic Training with D. Company, where I graduated on time, earning the title United States Marine.
         Upon graduating Basic Training I continued on with D. Company, Infantry Training Battalion where I earned the MOS title of 0311 Rifleman.
         Soon after that I entered the Fleet Marine Force with 1 st Battalion 7 th Marines, A. Company 2 nd Platoon. After being there for a few months I found out our Battalion was going to get deployed to iraq. Then one night a few weeks before we were d eployed, I went back to my home, where I saw old friends and used an illegal substance. After doing that I know I disgraced My country, Marine Corps., And Myself and I was ready to accept the consequences. I did not receive any punishment right away, but while in Iraq I had my court martial. I was reduced to E-1, losses of pay, and forty-five days hard labor. After all that I completed my tour of duty of seven months in Iraq where I gave superior service to my country with no hesitations.
         Since being discharged from the Marine Corps. I have held a steady job for the past seven months and have an excellent work record and have enrolled in college working toward my business degree.
         I realize that I have no excuse for what I did but I was nervous about being deployed to Iraq, and I was young and stupid. In the end I hope to get my discharge overturned and reenlist in the Marine Corps and get back to where I truly belong. Thank you for taking the time to read my letter and I will appreciate any decision the Discharge Review Board makes. Thank You very much. Sincerely, A_J. G_ [Applicant]
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2)


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20030328 - 20031116       COG
         
         Active: None
Period of Service Under Review :
Date of Enlistment: 20031117              Date of Discharge: 20050215

Length of Service (years, months, days):

 Active: 01 03 01
         Inactive: None

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

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 32

Highest Rank: LCpl                                   MOS: 0311

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8(3 )                Conduct: 3.8 ( 3 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Sharpshooter Badge, Global War on Terrorism Expeditionary Medal, Sea Service Deployment Ribbon, Global War on Terrorism Service Medal, 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 :

030321:  Applicant received pre-service enlistment waiver code FBE.

 030325 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

040825 :  NAVDRUGLAB, San Diego, CA , reported Applicant’s urine sample, received 040820 , tested positive for cocaine .
041005 :  Charge preferred against Applicant for violation of the Uniform Code of Military Justice (UCMJ) Article 112a:
          Specification: In that Private first Class Alonzo J. Gonzales, U.S. Marine Corps, on active duty, did, at an unknown location, on or about 18 August 2004, wrongfully use cocaine.

041028:  Memorandum of Pretrial Agreement approved. Applicant agrees to plead guilty to charge at Summary Court-Martial and waive administrative discharge board. Convening Authority agrees to refer charge to Summary Court-Martial vice Special Court-Martial.

041028 :  Charge referred to summary court-martial.
041104 :  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 112a :
          Specification: In that Private first Class Alonzo J. Gonzales, U.S. Marine Corps, on active duty, did, at an unknown location, on or about 18 August 2004, wrongfully use cocaine.
         Finding: to Charge and the specification thereunder, guilty.
          Sentence: Forfeiture of $795.00 for one month, reduced to E-1, and confinement for a period of 30 days.
         CA action 20041104: Sentence approved and ordered executed except that the confinement was commuted to 45 days of hard labor without confinement.
041121 :  Counseling: Advised of deficiencies in performance and conduct ( cocaine usage identified through urinalysis confirmed by Navy Drug Lab San Diego MSG 271640Z Aug 04 and recent conviction at Summary Court-Martial ) . N ecessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.
041209 :  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse. The factual basis for this recommendation was “tested positive during a battalion urinalysis for drug use, specifically cocaine.” Advised that least favorable characterization of service was under other than honorable conditions.

0412 10 :  Commanding Officer, 1 st Battalion 7 th Marines, 1 st Marine Division recommended to Commanding General, 1 st Marine Division (Rein) via Commanding Officer, 31 st Marine Expeditionary Unit that Applicant be discharge d by reason of misconduct due to drug abuse with a characterization of service as under other than honorable conditions. Commanding Officer’s comments: “Private G_ ’s [Applicant] choice to use illegal drugs was a conscious decision that he made despite having been counseled on numerous occasions about the Marine Corps Policy on drugs. Private G_ [Applicant] has proven through his use of illegal drugs that he does not possess the core values required of a Marine. Consequently, as the Battalion conducts operations in the Al Anbar province of Iraq, Private G_ has now become a liability vice a force multiplier. ”

041217 :  Commanding Officer, 31 st Marine Expeditionary Unit, recommended Applicant’s discharge under other than honorable conditions.
050107:  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.

 050113 :  GCMCA, Commanding General, 1 st Marine Division (Rein) , directed th e 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 20050215 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).

There is credible evidence in the record that the Applicant used illegal drugs. The Applicant pled guilty at summary court-martial to using cocaine, and does not attempt to deny it in this application. 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 waived his administrative discharge board in order to get the benefit of avoiding a special court-martial, at which, if found guilty, he may have received a criminal conviction and a punitive discharge. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be hel d 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 as possible mitigation. 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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