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USMC | DRB | 2006_Marine | MD0600561
Original file (MD0600561.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. MD06-00561

Applicant’s Request
The application for discharge review was received on 20060314 . 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 2007010 3 . 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
The Applicant submitted no decisional issues for consideration.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
 Letter from Applicant, dtd June 16, 2005
 Character Reference ltr from A_ D_, Teacher, Avon High School, dtd April 13, 2005
 Criminal History Report, dtd April 14, 2005
 Letter from S_ W_-R_, Senior Counselor, Open Hearth , dtd March 21, 2005
 Letter of Completion for Intensive Outpatient Treatment for alcohol addiction ending 041108, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20010813 - 20020325       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20020326              Date of Discharge: 20031017

Length of Service (years, months, days):

 Active: 0 1 0 6 22
         Inactive: None

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

Age at Entry: 1 7 (Parental Consent)

Years Contracted: 4

Education Level: 12                                 AFQT: 62

Highest Rank: LCpl                                   MOS: 0331

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 2.1 (1)               Conduct: 1.0 (1)

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



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 :

010804:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

 030710:  Counseling: Advised of deficiencies in performance and conduct (illegal drug involvement, specifically usage of cocaine identified on Drug Testing Laboratory message number 181036Z June 2003 ) sources of assistance provided and advised being processed for administrative separation.
030710 :  NJP for violation of UCMJ, Article 112a : In that Lance Corporal M_ E. R_ (Applicant), Headquarters and Service Company, 3d Battalion, 6 th Marines, 4 TH Marine Expeditionary Brigade (AT) did, on or about 030612, wrongfully use c ocaine, a schedule II controlled substance .
         Award: Forfeiture of $ 645. 00 pay per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 2 . Not appealed.
030721:  Counseling: Advised of deficiencies in performance and conduct (illegal drug involvement), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 030806:  Applicant referred f o r evaluation of alcohol intoxication, admits drinking until about 0200 this morning. Blood Analysis: .087%. Remarks: Alcohol intoxication. Expected to become competent to return to duty 7-8 hours after blood alcohol level drawn (approx 1800 today).

030807:  NJP for violation of UCMJ, Article 89: In that Private First Class M_ E. R_ (Applicant), Headquarters and Service Company, 3d Battalion, 6 th Marines, 4 TH Marine Expeditionary Brigade (AT) did, on or about 030806, behave with disrespect toward Lieutenant P_ G_, a superior commissioned officer, then known by said PFC R_ to be his superior commissioned officer, by writing to him, “F_ off”.
 Violation of UCMJ Article 134: In that Private First Class M_ E. R_ (Applicant), Headquarters and Service Company, 3d Battalion, 6 th Marines, 4 TH Marine Expeditionary Brigade (AT), was, on or about 030806, drunk and disorderly, which conduct was of a nature to bring discredit upon the armed forces.
          Award: Forfeiture of $ 575. 00 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 1 . Not appealed.
030915:  Medical Evaluation: Applicant reported to BAS in response to concerns communicated to chain-of-command by his mother. Applicant is being processed f o r administrative separation for misconduct due to drug abuse.
         Assessment: No DSM criteria of depression or bi-polar disorder
         AXIS I: Rule out [unreadable], ETOH dependence
         AXIS II: PD NOS with antisocial traits
         AXIS III: Mild ETOH withdrawal
         AXIS IV: Adsep pending
         AXIS V: Approximately 50
         Plan: ATF on 19 September if possible, monitor symptoms if SI/HI or depression, No need for further eval at this time, patient briefed regarding diagnosis.
0 31002 :  SJA review determined the case sufficient in law and fact.
031003 :  GCMCA, Commander, 4 th Marine Expeditionary Brigade , directed the Applicant's under other than honorable conditions discharge by reason of misconduct due t o drug abuse .
Service Record Book contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031017 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 Board presumed regularity in the conduct of governmental affairs ( E ).
The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. In the Applicant’s case, in the absence of a complete discharge package and without credible and substantial evidence to refute the Board’s presumption, the Board invoked the presumption of regularity. Specifically, the Board presumed that the Applicant was properly notified and afforded all rights which he elected at notification.

The Applicant submitted no decisional issues for consideration.

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. 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 two nonjudicial punishment proceedings for violations of Articles 89, 112a and 134 of the UCMJ. The Applicant’s violation of Articles 89 and 112a 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 following is provided for the edification of the Applicant. Administrative separations are not considered punitive in nature and the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. 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 sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge. 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. 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 vi olation of the UCMJ, Article 8 9, disrespect toward a superior commissioned 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 .

E . 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 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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