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USMC | DRB | 2006_Marine | MD0600501

Original file (MD0600501.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. MD06-00501

Applicant’s Request

The application for discharge review was received on 20060223 . 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 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 application to the Board:

“ I request an upgrade of my discharge because I feel that the characterization of my service was based upon one isolated incident of misconduct. I also feel that my many accomplishments as a Marine far out way the single isolated incident that my characterization of discharge was based on. ”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 ( Member 1 and 4)
39 p ages from Applicant’s s ervice record b ook

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USMCR (DEP)    19960611 - 1997010 5       COG
         Active: USMC     199 7 0 1 06 - 20001004       HON

Period of Service Under Review :

Date of Enlistment: 20001005              Date of Discharge: 20011221

Length of Service (years, months, days):

Active: 0 1 0 2 17
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 21

Years Contracted: 4 years and 4 months

Education Level: GED                        AFQT: 81

Highest Rank: Sgt                                    MOS: 7212

Final Enlisted Performance Evaluation Averages (number of marks): Fitness reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Marine Unit Commendation, Good Conduct Medal, Sea Service Deployment Ribbon, Riffle Sharpshooter Badge, Meritorious Mast

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 :

001005 : Reenlisted this date for a term of 4 years and 4 months .

010503: To confinement

010509: From confinement

011002 : Summary Court-Martial.
         Charge I : violation of the UCMJ, Article 91 . Specification 1 : Insubordinate conduct towards a Non-Commissioned Officer. Specification 2: Insubordinate conduct towards a Non-Commissioned Officer.
         Charge II: violation of the UCMJ, Article 112a . Specification: Wrongful possession of marijuana.
         Findings: to all charges and the specifications thereunder, guilty.
         Sentence: To be reduced to E-4 and to be restricted to specified limits for 60 days.
         CA action 011004 : Sentenc e approved and ordered executed . SNM is credited with 7 days pretrial confinement to be deducted as 14 days restriction. SNM is restricted to the limits of place of mess, bil leting , du, and worship and most direct route to and from without suspension from duty for 46 days.

011022 : Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. Applicant informed the least favorable character of service possible was under other than honorable conditions. The factual basis for this recommendation was illegal possession of a controlled substance as evidenced by a Summary Court-Martial Conviction for Wrongful Possession of Marijuana.

011022 : 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.

011022 : Sergeant Major, 2d Low Altitude Air Defense Battalion , letter regarding administration separation of Applicant: “In May 2001, Corporal A_ (Applicant) was arrested for driving with a revoked driver’s license and having an open alcoholic container. During his arrest processing, and transfer from civilian authorities to PMO, marijuana was found in Corporal A_’s possession. Additional charges were preferred because of his combative behavior, provoking speech and gestures, communicating a threat, and his repeated use of racial slurs. In October 2001, Corporal A_ was convicted at a summary court-martial for insubordination and wrongful possession of marijuana. Even though Corporal A_ is being processed for possession of marijuana, I think his personal conduct and behavior are just as serious. By his actions, he demonstrated his complete lack of those qualities and traits expected of a Marine. I recommend that he be separated under other than honorable characterization of service. ”

011022: Commanding Officer, 2d Low Altitude Air Defense Battalion , letter regarding administration separation of Applicant: “Corporal A_ (Applicant)’s possession of illegal drugs and his aggravated, insubordinate conduct toward all authority figures, to include the use of racial slurs, are incompatible with military service. The necessity of military police to use physical force to compel him to obey lawful orders further indicates he is unsuited for continued service as a Marine. ”

011023: Commanding Officer, 2d Low Altitude Air Defense Battalion, recommended the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.

011210 : SJA review determined the case sufficient in law and fact.

011210 : Commanding General, 2d Marine Aircraft Wing , directed the 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 20011221 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 ).

The Applicant implies that his discharge is inequitable because it 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. 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 summary court-martial conviction for violations of Articles 91 and 112a of the UCMJ. The Applicant violations of Articles 91 and 112a of the UCMJ are serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at a special or general 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

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. 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. 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. 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 91, insubordinate conduct toward a noncommissioned officer or Article 112a, wrongful use of a controlled substance.

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 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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USMC | DRB | 2006_Marine | MD0600501

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