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USMC | DRB | 2006_Marine | MD0600430
Original file (MD0600430.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. MD06-00430

Applicant’s Request
The application for discharge review was received on 20051228 . The Applicant requests that the Discharge Characterization of Service received at the time of discharge be changed to honorable and that the Narrative Reason for Separation be changed to “ Convenience of the Government . ” 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 200612 06 . 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 reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.







The NDRB did note administrative error(s) on the original DD Form 214. Block 2 4 , Character of Service , should read: “ UNDER OTHER THAN HONORABLE CONDITIONS .” The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:
“ 1) The narrative reason for Discharge was Misconduct due to Drug Abuse. I was tested 3 times and all test were negative for controlled substances .

2.) I believe my discharge was somewhat in malice B ecause I had requested for separation due to non compatability. There was a separation package sent to the commanding general for this reason . It was turned downed because his review of my service record gave him the impression I was an ideal Marine ( Before 4/93 good pro/cons pft/no office hours).
3.) I received an pg 11 entry at my commands suggestion to muddy my record in hopes of resubmission of package.

4.) My record of NJPs/or office hours show no other incidents or history of drug use. My only pg 11 entry was at my commands suggestion after denial of separation package.

 5.) Since my discharge I have been an upstanding citizen w/no police involvement, no drug use, and no civilian or military problems.
6.) I will admit my ability to serve was somewhat impaired by my youth and immaturity. I have been taken advantage by a local claiming I was the father of her child when later proved I was not. She lied to the magistrate about previous marriage she was still in. I found these things out when I was trying to attain custody of the child. And was told I would be prosecuted if custody was obtained due to the fact she was married to someone else which was unknown to me when I married her.

 7.) Numerous other personal and financial problems contributed to my inability to serve.

 8.) I believe my command abused it authority when it decided to discharge me and decided to give me a bad discharge. I was discharged for an offense that medical testing I did not receive copies of proved I had no controlled substances in my system. I was tested 3 times over a period of 2 months all were negative . There are no other record of use.

9.) My undesirable discharge was based on I single event.

 10.) My pro/con marking were above average Along with my pft score and Rifle scores. My proficiency and conduct rating averaged 4.4 – 4 . 5 all the way till July 1993 which was one month after my request for separation. See attached counseling worksheets. My PFT scores was 289 and I had earned my Rifle Expert 2 nd Award.
11.) I had tried to apply for a hardship discharge but was unfairly told to forget it. So when the separation was offered I did not fully understand the repercussion of that decision. I tried to follow proper procedures originally.

 12.) My averages for pro/con marks o n record of service do not match actual month pro/con markings ROS rating 93/07/31 4.0 2.5
                   Counseling-93/07/01 4.5 4.5
After expressing [NCOIC 93/07/20 4.1 4.1
Desire to leave [SNOIC   93/07/20 4.0 4.0
Marine Corps.    [OIC             93/07/20 2.5 4.0
                  Counseling 93/06/01 4.5 4.5
                  Counseling 93/06/23 request for discharge


Applicant’s Remarks: (Taken from the DD Form 293)
“ I request 3 things to be considered

1.) upgrade to honorable discharge

2.) A change in reason for discharge to “Convenience of the Government.”

3.) Reenlistment code change to RE-1 and corresponding separation program Number/designator

I do not have the counseling sheets for the months not included in this package but I believe it shows my marks while at CSSD-21 Accurately. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, dtd December 19, 2005
Pages from Serv ice Record (18 pages)
 PFC Award dtd September 7, 1991
 LCpl A ppointment l tr dtd June 1, 1992
 Certificate of Appreciation ltr dtd July 29, 1993
 Certificate of Appreciation for relocation of the OCAP/CTC Office at Cherry Point,       North Carolina from Southern Illinois University at Carbondale, dtd June 1993
Marriage Annulment Order from North Carolina Craven County District Court dtd July       19, 1993 (3 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19910417 - 19910908       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19910909              Date of Discharge: 19931229

Length of Service (years, months, days):

 Active: 0 2 03 21
         Inactive: None

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

Age at Entry: 1 7 (Parental Consent)

Years Contracted: 5

Education Level: 12                                 AFQT: 8 0
Highest Rank: LCpl                                   MOS: 1142

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 4 ( 5 )                       Conduct: 4 .0 ( 5 )

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Certificate of Appreciation, M16A2 Weapon Expert Badge 2d Awd


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN 6210.5.
Chronological Listing of Significant Service Events :

910417:  Drug Abuse Screening Form: Applicant experimented with marijuana/hashish (THC) 83-01.

 910 4 17:  RS CO waiver MGD approved.

930722:  Counseling: Advised of deficiencies in performance and conduct (Displays poor judgement in both military and non-military matters, you demonstrate a poor attitude towards your work and you show a lack of motivation and loyalty; specifically in that you have expressed, on more than one occasion, your desire to be released from your military obligation. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
931014:  Substance Abuse Counseling Center, MCAS Cherry Point NC. Notification of Completion of SACC Evaluation. Applicant was examined at the SACC on this date, determined not to be drug or alcohol dependent. Recommend discharge. Prior to discharge it is also recommended that the Applicant attend the next PREVENT course for education purposes.
931025:  Counseling: “ Concerning my (Applicant) illegal drug involvement specifically my admission to illegal drug use on 931012. I was seen by a Substance Abuse counselor on 931014. In accordance with the substance abuse counselor’s recommendation and per MCO P5300.12 and MCO 1900.16D, I am being processed for administrative discharge. ” Applicant chose not make a statement.
931025 :  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 voluntary admission of your use of marijuana as per the reference.

931025 :  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

931025 :  Commanding Officer, Combat Service Support Detachment 21 recommended to Commanding General, 2d Force Service Support Group that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse pursuant to the provision of paragraph 6210.5 of the reference . The factual basis for this recommendation was the respondent’s admission of use of marijuana as per reference MCO P 5300.12 para 1204 and 1205.

931119 :  SJA review determined the case sufficient in law and fact.
931202:  Commanding Officer, Combat Service Support Detachment 21, letter to Commanding General, 2d Force Service Support Group. CO’s comments:” Upon returning from a 96 hour liberty during the Columbus Day holiday, LCpl B_ (Applicant) approached Sgt R_, the unit assistant DACO, stating that he had used marijuana that weekend while in Michigan. Sgt R_ contacted GySgt F_ the units DACO, who then notified the PREVENT Coordinator. On 12 Oct, LCpl B_ (Applicant) was seen by GySgt R_ who determined him not to be drug dependent, but recommended discharge IAW reference (a).”
931222 :  GCMCA, Commanding General, 2d Force Service Support Group directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse, pursuant to paragraph 6210.5 of the reference .


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931229 by reason of misconduct due to drug abuse (A) with a service characterization of u nder 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 Applicant states his discharge was based on one isolated incident. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. There is credible evidence in the record that the Applicant used illegal drugs. During October 1992, the Applicant admitted that he had used drugs while on liberty . 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 summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. 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 a retention warning, and his admission that he used marijuana, which is a violation of Article 112a of the UCMJ. Violation of UCMJ Article 112a is considered a serious offense, for which a punitive discharge is authorized if ajudged by a 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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, Applicant alleged that his command “abused its authority” and that his “discharge was somewhat in malice” because he had requested to be separated due to “non compatibility” and “hardship”. The record, however, contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else for that matter in the discharge process. The Applicant admitted that he used illegal drugs and was properly notified by the Commanding Officer that he was recommending the Applicant’s discharge by reason of misconduct due to drug abuse. The Applicant was advised of his rights, elected not to consult with counsel, and elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation. The separation authority, the Commanding General, 2d Force Service Support Group, directed the Applicant’s discharge pursuant to paragraph 6210.5 of MCO P1900.16D. Relief denied.

The Applicant contends that his problems in the Marine Corps can be attributed to his youth, immaturity, personal and financial problems. While he may feel that these factors were 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.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 to consider mitigating the misconduct that resulted in the characterization of discharge. 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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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