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USMC | DRB | 2006_Marine | MD0600653
Original file (MD0600653.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. MD06-00653

Applicant ’s Request
The application for discharge review was received on 20060412 . 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 20070118 . 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 12c, Net Active Service This Period, should read: “02 10 12.” 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

Decisional Issues
Equity: Characterization too severe for the ‘worst infraction’ of drinking underage.

 Equity: Urinalysis results from alcohol treatment facility were considered when characterizing Applicant’s service.

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)
Applicant’s Official Military Personnel File on CD-ROM

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20011018 - 20020225       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20020226              Date of Discharge: 20050107

Length of Service (years, months, days):

 Active: 0 2 1 0 12
         Inactive: None

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

Age at Entry: 1 7 (Parental Consent)

Years Contracted: 5

Education Level: 12                                 AFQT: 68

Highest Rank: PFC         MOS: 6092

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NA*                                     Conduct: NA*
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Global War on Terrorism Service Medal, National Defense Service Medal, Marksman Rifle Badge

*Not Available


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 :

011015 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
021106:  NJP for violation of UCMJ, Article 134. Specification not found in record. Award: Forfeiture of $ 552. 00 per month for 1 month, restriction for 6 0 days, reduction to E- 1 . Forfeiture, restriction for 45 days and reduction suspended for 2 months. Not appealed. [Partially extracted from c ounseling dated 021106.]
021106:  Counseling: Advised of deficiencies in performance and conduct (Nonjudicial proceedings concerning violations of articles 134 of the UCMJ.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030114:  Counseling: Advised of deficiencies in performance and conduct (Violation of the UCMJ, Article 92, failure to obey order or regulation. Specifically o n 021214 you did allow a Marine to operate your motor vehicle while intoxicated.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 030128:  NJP for violation of UCMJ, Article 92 ( 2 specs).
          Specification 1: Fail to obey a lawful general order by wrongfully consuming alcoholic beverages as a minor on 24-25 January 2003.
         Specification 2: Fail to obey a lawful general order, to wit: NASLEMINST 1700.3e by wrongfully consuming alcoholic beverages.
Violation of UCMJ, Article 134 : Wrongfully and falsely alter a Smart Card in words and figures, changing year of birth from 1984 to 1981.
         Award: Forfeiture of $ 500. 00 per month for 2 month s , restriction and extra duty for 15 days, reduction to E- 1 . Restriction and extra duty suspended for 6 months. Not appealed.
030922:  Counseling: Advised of deficiencies in performance and conduct (Drinking underage.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 031002:  NJP for violation of UCMJ, Article 92 .
          Specification: Failure to obey order or regulation by consuming alcohol while under the legal drinking age. Award: Forfeiture of $ 575.00 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 1 . Not appealed.
031022:  Counseling: Advised of deficiencies in performance and conduct (Violation of the UCMJ, Article 92, failure to obey orders or regulations regarding your drinking incident.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 040218 :  Counseling: Advised of deficiencies in performance and conduct ( Alcohol related incident, specifically underage drinking on 040216. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
040318 :  Counseling: Advised of deficiencies in performance and conduct ( Consuming alcohol while under the legal drinking age .), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
040329:  Applicant to treatment at Substance Abuse Rehabilitation Program, Naval Medical Center, San Diego.

040330:  NM C San Diego lab report: Applicant’s urine tested p ositive for cannabonoids.
040423:  Substance Abuse Rehabilitation Program Naval Medical Center, San Diego narrative summary: The patient is a command referral after receiving three alcohol related incidents (underage drinking), 1 st incident was during January 2003, 2 nd incident during October 2003, 3 rd incident during February 2004. The patient completed Outpatient Treatment on 031121 and a MAAC Course on 031009 at MCAS, Miramar, CA. The patient was diagnosed alcohol dependent on 040304.
          Treatment Course: The patient completed four weeks in the Residential Treatment Program.
040511:  Counseling: Advised of deficiencies in performance and conduct ( Wrongful drug use. ), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

040707:  NJP for violation of UCMJ, Article 92: Failure to obey order, to wit: Regional order 1050. Violation of UCMJ, Article 134 : Drunk and disorderly conduct, to wit: apprehended by civilian authorities for public intoxication on 040626. Award: Forfeiture of $ 596.00 per month for 2 month s , restriction for 6 0 days . Not appealed.
040707:  Counseling: Advised of deficiencies in performance and conduct ( NJP on 040707, violation of the UCMJ, Article 92, failure to obey orders or regulations regarding your drinking incident. Article 134, drunk and disorderly conduct. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
040713 :  Counseling: Advised of deficiencies in performance and conduct ( Alcohol Rehabilitation Failure. ), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

040802 :  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure, misconduct due to a pattern of misconduct, and misconduct due to drug abuse. The factual basis for this recommendation was failure to comply with the aftercare treatment, wrongful use of marijuana as evidenced by positive testing on a urinalysis; and conduct documented in service record book. Applicant informed the least favorable character of service possible was as under other than honorable conditions.

040803 :  Applicant partially 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.
040813 :  Commanding Officer recommended Applicant ’s discharge under other than honorable conditions by reason of alcohol rehabilitation failure, misconduct due to a pattern of misconduct and misconduct due to drug abuse.

040920:  Applicant acknowledged rights contained in Supplemental Acknowledgement.
UNDATED :         SJA review determined the case legally sufficient.
041109 :  GCMCA, Commander, Third Marine Aircraft Wing , approved the Applicant 's discharge under other than honorable conditions by reason of alcohol rehabilitation failure , misconduct due to a pattern of misconduct, and 6210.5 (Code HKK1) of the reference for misconduct due to drug abuse. GCMCA indicated Paragraph 6210.5 wa s the primary basis .
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050107 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 contends that his discharge is inequitable because his worst infraction was drinking underage. An under other than honorable conditions discharge is warranted when significant negative aspects of member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by seven retention warnings and four nonjudicial punishment proceedings for violations of Articles 92 and 134 of the UCMJ. Every violation of Article 92 of the UCMJ is considered the commission of a serious offense. 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 U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that the characterization of service as under other than honorable conditions is inequitable because a results from an alcohol treatment facility were considered. Reference (A) specifically states that the results from a urinalysis conducted for a valid medical reason may be used to characterize a member's discharge as under other than honorable conditions. The Applicant’s issue is without merit, relief denied.

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 to consider mitigating the misconduct that resulted in the characterization of discharge. Additionally, there is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. 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 violation of the UCMJ, Article 92, failure to obey order/regulation.
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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