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USMC | DRB | 2006_Marine | MD0600626
Original file (MD0600626.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. MD06-00626

Applicant ’s Request
The application for discharge review was received on 20060403 . 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 20070110 . 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 ization 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: Depression
        
         Equity: Prior good service

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’s DD Form 214 (Member 4)
Applicant ’s DD Form 149, dtd September 2, 2005
Statement from Applicant , dtd September 2, 2005 (9 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19960621 - 1996 0728       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 1996 0729              Date of Discharge: 20001102

Length of Service (years, months, days):

 Active: 04 0 3 05 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              74 days

Age at Entry: 20

Years Contracted: 6

Education Level: 12                                 AFQT: 91

Highest Rank: Cpl                                    MOS: 6173 (Helicopter Crew Chief)

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (10 )                                Conduct: 3.8 (1 0)
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Meritorious Unit Commendation w/1*; Armed Forces Expeditionary Medal; Sea Service Deployment Ribbon; Rifle Expert 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 :

971205:  Counseling: Advised of deficiencies in performance and conduct ( Wearing your hair in an eccentric manner and improper use of chain of command procedures .), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 980204:  Counseling: Advised of deficiencies in performance and conduct ( Concerning the fact that a clip of 3.56 mm ammunition was found in your wall locker in the room in barracks 539 in which you reside .), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant choose to make a statement.

981109:  Counseling: Advised of deficiencies in performance and conduct ( Lack of self-discipline, poor judgment, and being late on numerous occasions. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990414 :  NJP for violation of UCMJ, Article 86: Failed to go at the time prescribed to his appointed place of duty.
         Award: Forfeiture of $ 100.0 0 per month for 1 month, oral reprimand, reduction to E- 3 . Reduction suspended for 6 months. N ot appealed.
990722:  Counseling: Advised of deficiencies in performance and conduct ( Article 86, UA .), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued or limitation on future service.

990930:  Reduction in pay grade awarded at NJP on 990414 vacated.

 991006 :  NJP for violation of UCMJ, Article 86: Without authority, fail to go at the time prescribed to his appointed place of duty.
         Award: Forfeiture of $ 537.00 per month for 1 month, reduction to E- 2 . Forfeiture of $358.00 and reduction to E-2 suspended for 6 months. N ot appealed.
991012:  Forfeiture of pay and reduction in pay grade awarded at NJP on 991006 vacated .

000531 :  S pecial Court-Martial.
          Charge: violation of the UCMJ, Article 112a.
         Specification: On or about 990927, at an unknown location, SNM wrongfully use marijuana.
         Plea: Not guilty.        Finding: to Charge and the specification thereunder, guilty.
          Sentence: Confinement for 90 days, reduction to E-1.
000619 :  Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of misconduct due to pattern of misconduct and drug abuse. The factual basis for this recommendation was your 2 nonjudicial punishments, 5 Page 11’s and your conviction by a Special Court Martial. Applicant informed the least favorable character of service possible was as under other than honorable discharge. [ Date extracted from Purpose and Scope of the Navy Discharge Review Board and the Board for the Correction of Naval Records ]

000619 :  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. [Date extracted from Purpose and Scope of the Navy Discharge Review Board and the Board for the Correction of Naval Records]

000811 :  Commanding Officer recommended that the Applicant be discharge d under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse.

000908   Applicant was found to be non drug dependent.

000918:  NJP for violation of UCMJ, Article 134: Impersonating a noncommissioned officer by wearing corporal chevrons on his collar.
         Award: Forfeiture of $275.00 per month for 1 month, restriction for 60 days. Forfeiture and restriction suspended for 2 months. Not appealed.

 000928 :  SJA review determined the case sufficient in law and fact.

 001010 :  GCMCA, Command ing General, 3d 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 20001102 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 Board presumed regularity in the conduct of governmental affairs (D).
Equity – Depression: The Applicant suggests that the challenges associated with separation from his family and friends and deployments led to his depression. He stated, “It was during this time period where I unknowingly partook of marijuana.”

When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to excuse the Applicant’s misconduct. Indeed, the Board saw no connection between the Applicant’s misconduct and his medical condition. While he may feel that his depression was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The Board concluded that his service was equitably characterized. Relief on this basis is denied.

Equity – Prior good service: The Applicant desires an upgrade based on quality 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. There is irrefutable evidence that the Applicant’s conduct during his time in the Marine Corps was not honorable. Indeed, the Applicant’s records contain 4 retention warning entries; 2 nonjudicial punishment proceedings for violation of UCMJ Article 86 Unauthorized absences; and a special court-martial conviction for violation of UCMJ Article 112a Wrongful use of a controlled substance. The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for a characterization under honorable conditions. An upgrade would be inappropriate; therefore relief is 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 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 31 Jan 97 until 31 August 2001.

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 .

D. 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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