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USMC | DRB | 2006_Marine | MD0600454
Original file (MD0600454.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. MD06-00454

Applicant’s Request
The application for discharge review was received on 20060206 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or 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 20061214 . 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 - ISSUES AND DOCUMENTATION

Decisional Issues :

Equity: Command misconduct

Equity: Benefits

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4) (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19940526 - 19950129       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19950130              Date of Discharge: 19960816

Length of Service (years, months, days):

 Active: 0 1 0 6 17
         Inactive: None

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

Age at Entry: 1 9

Years Contracted: 4

Education Level: 12                                 AFQT: 49

Highest Rank: LCpl                                   MOS: 0341

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 .0 ( 5 )                                Conduct: 3 . 6 ( 5 )

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksman Badge, National Defense Service Medal .


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN 6210.5.
Chronological Listing of Significant Service Events :

940524 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

940526:  Enlistment waiver granted for pre-service marijuana use.

 960418 :  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 960412, tested positive for THC .
960430:  NJP for violation of UCMJ, Article 112a:
         Specification: In that SNM did, at an unknown location, on or about 960405 , smoke marijuana, a controlled substance.
Award: Forfeiture of $490.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Not appealed.
960520 :  NJP for violation of UCMJ, Article 134:
         Specification: In that PFC O_ (Applicant) was, on or about 2241/960506, while at Bldg. 620432, aboard CamPen, drunk and disorderly, to wit: SNM did urinate on the catwalk of said bldg, while talking on the phone.
Violation of UCMJ Article 92:
Specification: In that PFC O_ did or about 2210/960514 violate his NJP imposed restriction, to wit: leaving 62 area and by having visitors.
          Award: Forfeiture of $ 400.00 pay per month for 2 month s , restriction and extra duty for 45 days (10 days of extra duty suspended for 6 months) , reduction to E- 1 . Not appealed.
960628:  Unconditional Waiver of Administrative discharge Board.
960710 :  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 the NJP dtd 960430. Applicant informed the least favorable character of service possible was under other than honorable conditions.

960712 :  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.

960715:  Consultation Re port by B. L. G_, Capt MC USN:
 Impression: T HC abuse . Alcohol abuse.
         Recommendations: Process for separation, counseled on VA, CMD Level I if retained.
960716:  Counseling: Advised of deficiencies in performance and conduct (Illegal drug usage of THC (positive identification by NAVDRUGLA B San Diego, CA, 182031Z Apr 96) ), necessary corrective actions explained, sources of assistance provided. Applicant advised of mandatory processing for drug abuse.

960719 :  Commanding Officer, 1 st Battalion, 5 th Marine Regiment, recommended that Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.

960813:  SJA review determined the case sufficient in law and fact.
960814 :  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.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960816 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).

Equity – Command misconduct: The Applicant implies that his discharge was inequitable because he “was treated unfairly due to not belonging to original unit and labeled a trouble maker.”

There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention of command misconduct. In the absence of incriminating evidence, the Board concluded that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s service and subsequent administrative processing. The Board advises the Applicant that he bears the burden of establishing his issues through the presentation of substantial and credible evidence. The Applicant’s statements alone do not provide sufficient basis to grant relief. Relief denied.

Equity – Benefits: The Applicant requests an upgrade to “raise [his] social status and receive benefits for [his] life.”

The Applicant is advised that the Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits or enhancing employment and educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

The following is provided for the Applicant’s edification. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question, but the Board found no such impropriety or inequity. While 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 service, the Board 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct. At this time, the Applicant did not provide any post-service documentation for consideration. Relief on this basis is not warranted.

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 post-service accomplishments or any other evidence related to the discharge at that time. 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 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 .



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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