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USMC | DRB | 2006_Marine | MD0600452
Original file (MD0600452.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD06-00452

Applicant’s Request
The application for discharge review was received on 20060131 . 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 personal appearance discharge review before the Board in the Washington, D.C. Metropolitan area . The Applicant did not designate a representative on the DD Form 293.
Decision
A personal appearance hearing discharge review was conducted in Washington, D.C. on 20070418 . 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 4 to 1 that the character of the discharge s hall not change. The discharge shall remain U nder Other Than Honorable Conditions by reason of misconduct due to drug abuse.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Equity – Post service

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, dtd November 22, 2005
 Letter of Support from M_ E. D_, JR. LTC, CM, GaARNG, Commanding, dtd    November 15, 2005
 Reference Letter from SSG D_ C_, Recruiting and Retention NCO, dtd October 29,
        2005
The Applicant provided the following documentation at the time of his personal appearance hearing:

 Letter from M_ E. C_, dtd July 10, 2006
Letter from J_ T. C_, dtd July 6, 2006
The Applicant was given a 10 day extension to provide documentation to support his testimony. The following additional document ation , received on 20070426, was considered:
Letter from the Applicant, dtd April 26, 2007
Criminal Records check, dtd April 24, 2007
 Letter of DUI Counseling Services, M_ L.C_, dtd August 25, 2005
Certificate of Counselor Level II for M_ L. C_
Strength Maintenance Operations Me ssage 06-005, R_ R. G_, Colonel , GS, Chief, ARNG Strength Maintenance Division, dtd October 13, 2005 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19920803 - 19930627       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19930628              Date of Discharge: 19951011

Length of Service (years, months, days):

 Active: 0 2 0 3 14
         Inactive: None

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

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 34

Highest Rank: LCpl                                   MOS: 0311

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 .0 ( 6 )                       Conduct: 4 .0 ( 6 )

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, S ea Service Deployment Ribbon , Rifle Marksmanship 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 :

920713 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
950907:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 950829, tested positive for THC.
950929 :  NJP for violation of UCMJ, Article 112a : Test positive for a controlled substance, marijuana (THC), NavDrugLab Jacksonville, FL message R070500Z Sep 95 Batch #DK51, Spec 11, Lab #469338 .
         Award: Forfeiture of $ 478. 00 per month for 2 month ( forfeiture of 1 month pay suspended for 1 month) , restriction and extra duty for 45 days, reduction to E- 2 . Not appealed.
950929 :  Counseling: Advised of deficiencies in performance and conduct ( Involvement with a controlled substance/drug ), and informed that he (Applicant) is being recommended for administrative discharge under conditions of other than honorable due to drug use. The Applicant did not desire to make a statement.

95 1003 :  Director, Consolidated Drug and Alcohol Center Evaluation , Report. Applicant was evaluated on 950929 as the result of a command referral.
Diagnostic Impression: A lcohol/drug abuser.
Recommended treatment plan: SACO monitored NA meetings one time weekly until discharged/released. Weekly screening by unit SACO until discharge. Applicant should be held strictly accountable for his actions. Applicant was counseled and given the information for contacting the Veteran’s Administration Hospital nearest to Applicant’s home of record for treatment after discharge from USMC. Recommend Applicant be administratively processed for separation per ALMAR 246/92. An SRB entry is recommended with respect to Applicant being briefed on VA information applicable to desired treatment.
951003 :  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: “This recommendation is based upon your violation of Article 112a on or about 950825 test positive for the wrongful use of a controlled substance, marijuana (THC), Lab Batch #469338/Spec # 11 Message dated 070500Z Sep 95”. Applicant informed the least favorable character of service possible was under other than honorable conditions.

951003 :  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.

951003 :  Commanding Officer , 2d Battalion , 8 th Marines, 2d Marine Division, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse . T his recommendation was based upon the respondent’s violation of Article 112a wrongful use of a controlled substance , marijuana.

951005 :  SJA review determined the case sufficient in law and fact.
951005 :  GCMCA, Commanding General , 2d Marine Division , directed the Applicant's under other than honorable conditions discharge by reason of misconduct due to drug abuse .
010906:  NDRB documentary record review Docket Number MD01-00197 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19951011 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). The Board presumed regularity in the conduct of governmental affairs (D).
Equity – Post service: The Applicant contends that since his discharge he has maintained good employment, that he has not used controlled substances, and that he has learned from his past mistakes .

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. Documentation provided by the Applicant, specific to his post-service accomplishments, included two letters from family members, a criminal records check, and a report of an alcohol abuse assessment conducted during 2005. While acknowledging the Applicant’s efforts, the Board concluded that the Applicant's post service accomplishments needed to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and evidence of a drug free existence. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. Therefore, no relief will be granted.

The following is provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.








Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 to 30 Jan 97.

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 .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .


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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