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USMC | DRB | 2006_Marine | MD0600495
Original file (MD0600495.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. MD06-00495

Applicant’s Request
The application for discharge review was received on 20060208 . 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 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.
The NDRB did note administrative error(s) on the original DD Form 214. Block 1 2a, Date Entered AD this Period, should read: “95 02 09.” Block 12c, Net Active Service this Period, should read: “02 03 21.” Block 28, Narrative Reason for Separation, should read: “ MISCONDUCT .” The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.



PART I - ISSUES AND DOCUMENTATION


Decisional Issues
Equity: Post-service.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Copy 4)
Response to R equest for Separation D ocuments/ I nformation
 Letter from Applicant, dated January 7, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19950110 - 19950116       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19950117              Date of Discharge: 19970530

Length of Service (years, months, days):

 Active: 0 2 0 4 14 (Does not exclude lost time.)
          Inactive: None

Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              23 days

Age at Entry: 20

Years Contracted: 4

Education Level: 12                                 AFQT: 39

Highest Rank: LCPL                          MOS: 3531

Final Enlisted Performance Evaluation Averages (number of marks):

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

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


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 :

941207 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

960215:   Acknowledged understanding of eligibility but not recommended for promotion to LC pl for the month of March because of lack of responsibility. Applicant chose to make a statement. Statement not found in record.

960903:  Counseling: Advised of deficiencies in performance and conduct (Failure to maintain adequate funds in your checking account thus resulting in a returned check to the MEU disbursing Office.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
961204:  NJP for violation of UCMJ, Article 123 a :
          Specification: At C amp Hansen Exchange, Okinawa, on or about 961108, utter a check or draft without sufficient funds: $25.00.
          Award: Forfeiture of $237.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 14 days . Not appealed.
961205 :  Counseling: Advised of deficiencies in performance and conduct ( Office Hours on 961204 for violation of Article 123: writing bad checks ).

970121:  Forfeiture of pay awarded at NJP on 961204 vacated due to continued misconduct.
970208:  NAVDRUGLAB, San Diego, reported Applicant’s urine sample, received 970124, tested positive for THC.
970228:  NAVDRUGLAB, San Diego, reported Applicant’s urine sample, received 970221, tested positive for THC.

970319 :  Summary Court-Martial.
          Charge: V iolation of the UCMJ, Article 112a:
          Specificati on: Wrongful use of marijuana.
         Additional Charge: Violation of the UCMJ, Article 112a:
         Specification: Wrongful use of marijuana.
          Finding: To all Charges and specifications thereunder, guilty.
          Sentence: Forfeiture of $600.00 pay per month for 1 month, reduced to E-1 and to be confined for 30 days.
         CA action 970319: Sentence approved and ordered executed.

970319:  Applicant found fit for confinement. Applicant to confinement.

970413:  Applicant from confinement. [Extracted from DD 214.]

970415:  Applicant refused Medical Officer’s evaluation for addictions.

970425:          Applicant found physically qualified for separation.
970429 :  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. The basis for this recommendation was use of marijuana. Applicant informed the least favorable character of service possible was under other than honorable conditions.

970429 :  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.

970429:  Commanding Officer, 3d Battalion, 5 th Marine Regiment, recommended that the Applicant be discharged Under Other Than Honorable Conditions by reasons of misconduct due to drug abuse.
970521 :  SJA review determined the case sufficient in law and fact.
970521 :  Commanding General , 1 st Marine Division, directed the Applicant ’s under other than honorable conditions discharge by reason of misconduct due to drug abuse .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970530 by reason of misconduct due to drug abuse (A and B ) 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 ( C and D ).

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. When a Marine’s service 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 nonjudicial punishment proceedings (NJP) for violation of Article 123a of the UCMJ. The Applicant’s partially suspended award at NJP on 19961204 was vacated on 19970121 due to his continued misconduct. The Applicant was subsequently convicted at Summary Court-Martial for two specifications of violation of Article 112a of the UCMJ. Violations of Articles 112a and 123a are serious offenses. 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant implies that his discharge should be changed due to his post-service conduct. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Relief 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 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. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a, wrongful use of a controlled substance or Article 123a, uttering checks with insufficient funds.

C . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

D . 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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