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USMC | DRB | 2006_Marine | MD0600508
Original file (MD0600508.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. MD06-00508

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 honorable and the Narrative Reason for Separation be changed to “EAS. ” The Applicant requests a documentary record discharge review. The Applicant designated a private representative as the 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 and reason for discharge shall not change. The discharge shall remain U nder 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 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS,” and 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 - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant ’s issues, as stated on the application:
“ I request that my characterization of discharge be changed to honorable because I believe that I served honorably in the Marine Corps, also there were several injustices that have been imposed upon me during my time of service. My date of separation is 20050629, just a month shy of my EAS date. No pay for travel or final pay was awarded during my time of discharge. The narrative reason for discharge was misconduct due to drug abuse, a statement which is totally false. As of 2005/31/05 A CPl W. B_ of 2 nd LAAD BTN secretly solicited a civilian for marijuana and without my knowledge concealed the substance in my vehicle. This was the first isolated incedent which occurred off base in Greenville, NC. As a good samaritan, I provided a ride for this marine because he didn’t have a ride back to base. He had been drinking, so as the designated driver I took him back to the base. I stop briefly at a gas station to refuel while the Cpl. went inside and purchased some items. Once we arrived on base the MP’s performed a random check on us and found three cigars on the passenger side and a cigar that obviously had been smoked halfway. The cigar contained the marijuana that the Cpl had purchased, but me being the driver was charged with possession. It wasn’t until January that I was shocked to find that I was being charged with article 112A. As a result, I would face administrative separation. I requested an admin separation board in May of 2005. My defense council, Cpt. T_ M_ appealed the admin sep but I still recieved an OTH. I was discharged June 29 under other than conditions. I am currently unemployed with a 4 year old son to raise and I am attending college. I believe that i served honorably and request that an upgrade be in order. ”
Representative submitted no issues.
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)
Certificate of Good Conduct, dtd July 22, 2004
Receipt for attorney fees, dtd March 1, 2005
 Applicant ’s notice of North Carolina driving privileges, dtd March 2, 2005
 Applicant ’s statement, dtd March 4, 2004
 Applicant ’s financial plan projection from The Art Institutes, dtd August 18, 2005
Dental Exam form, dtd March 23, 2005
Mandatory Vehicle Insurance brochure
 Applicant ’s North Carolina Public Library card
PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20010628 - 20010723       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20010724              Date of Discharge: 20050629

Length of Service (years, months, days):

 Active: 0 3 11 06
         Inactive: None

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

Age at Entry: 21

Years Contracted: 4
Education Level: 12                                 AFQT: 36

Highest Rank: LCpl                                  MOS: 3051

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 ( 9 )                                 Conduct: 4.0 ( 9 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Marine Corps Good Conduct Medal, Global War on Terrorism Service Medal, National Defense Service Medal, Navy Meritorious Unit Commendation, Rifle Marksman 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 :

010626:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
010628:  Pre-service waiver granted.
041115 :  NAVDRUGLAB, Jacksonville, FL, reported Applicant ’s urine sample, received 041108 , tested positive for THC .
050120:  NJP for violation of UCMJ, Article 112a:
         Specification: At MACS-2, MACG-28, 2d MAW, Cherpt on or about 041101, did wrongfully use and possess a controlled substance, to wit: marijuana.
         Award: Forfeiture of $668.00 per month for 2 months, restriction for 30 days, reduction to E-2. Forfeiture suspended for 6 months. Not appealed.

 050204:  Program Manager, Substance Abuse Counseling Center , Cherry Point, North Carolina.
         Applicant interviewed and military and health record were reviewed to determine if possible alcohol abuse/dependence exists. The initial impression was alcohol abuse. Applicant was referred and met for further evaluation with Dr. D. W. H_, CAPT/MC/USN on 050203 resulting in a diagnosis of alcohol abuse. Also, Applicant did not appear to meet Cannabis abuse/dependency criteria. Applicant assigned to the Outpatient Treatment program for alcohol abuse.
050207:  Applicant admitted into the Outpatient treatment program.

 050224 :  Commanding Officer, Marine Air C ontrol Squadron 2, recommended to Commanding General, 2d Marine Aircraft Wing via Commanding Officer, Marine Air C ontro l Group 28, Applicant ’s discharge under other than honorable conditions by reason of drug abuse. The factual basis for this recommendation was summarized in the following sub-paragraph: a. 041101, a small amount of marijuana was found and seized by PMO from Private First Class M_( Applicant )’s POV. b. 041101, a urinalysis was conducted which he tested positive for THC on 041115. c. NJP on 050120; violation of article 112a, using and possessing a controlled substance.

050228:  Applicant completed Outpatient treatment and aftercare plan provided.

 050301:  Counseling: Advised of deficiencies in performance and conduct (NJP on 050120; violation of article 112a, using and possessing a controlled substance: to wit: marijuana. Violation demonstrates lack of judgment and blatant disregard for the Marine Corps zero tolerance policy for drug abuse. Drug use is contrary to good order and discipline and is not tolerated.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 050311:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of drug abuse. Applicant informed the least favorable character of service possible was as under other than honorable conditions.

050311:  Applicant advised of rights and having elected not to consult with counsel, elected to appear before an Administrative Discharge Board.
050311 :  Commanding Officer, Marine Air Control Squadron 2 , recommended Applicant ’s discharge under other than honorable conditions by reason of drug abuse.

050523:  Applicant waived administrative discharge board review.

060613 :  SJA review determined the case sufficient in law and fact.

 060613 :  GCMCA, Commander, 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 20050629 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 Applicant states , “I request that my characterization of discharge be changed to honorable because I believe that I served honorably in the Marine Corps, also there were several injustices that have been imposed upon me during my time of service.” When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as under other than honorable conditions 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 the award of nonjudicial punishment (NJP) on one occasion for violations of the Uniform Code of Military Justice (UCMJ). The Applicant’s misconduct included violation of Article 112a (wrongful use, possession of a controlled substance). The Applicant’s conduct, which form the primary basis for determining the character of his service, reflect his record, and falls below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief is therefore denied.

The Applicant claims the narrative reason for his discharge should not be misconduct due to drug abuse. 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. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use. The Applicant’s allegation, that the narrative reason for discharge due to drug abuse was false, does not dismiss the facts in this case. 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. 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. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective
01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.

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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