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USMC | DRB | 2006_Marine | MD0600678
Original file (MD0600678.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. MD06-00678

Applicant’s Request
The application for discharge review was received on 20060322 . 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 personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070222 . 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 at the time of discharge was discovered by the NDRB. However, after consideration of the Applicant’s entire record, including post-service conduct, the Board determined that relief was warranted. The Board’s vote was 3-2 that the discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/ IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419 , Separation Code “ KFS1 . ”

PART I

–ISSUES AND DOCUMENTATION

Decisional Issues

EQUITY – Record of promotions shows that Applicant was a good servicemember.
EQUITY – Drugs impaired Applicant’s ability to serve.
EQUITY – Ability to serve was impaired by youth and immaturity.
EQUITY – Post-service conduct.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (M ember 4)
Continuation of DD Form 293 Item 14
 Issue checklist from Applicant
 2 pages from Applicant’ s service record book (2)
Applicant’s statement, unsigned, undated
 Ltr from C_ B. E_, undated
Ltr from N. C_ P_, dtd February 14, 2007
Ltr from Applicant’s employer, dtd February 12, 2007
New Jersey Motor Vehicle Commission record print out dtd February 20, 2007
Ltr from Riverfront Medical Center with urinalysis results enclosure, dated September 21, 2006
 Ltr from Riverfront Medical Center with urinalysis results enclosure , dated February 13, 2006


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19991217 - 20000124       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20000125              Date of Discharge: 20010625

Length of Service (years, months, days):

 Active: 0 1 0 5 0 6 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 34 day s
         Confinement:              None

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 62

Highest Rank: P FC                                    MOS: 0341

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): Rifle Marksman Badge, Meritorious Mast

*Not Available


 Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

 Chronological Listing of Significant Service Events :

991215 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

000918:  Applicant to UA as of 0730, 000918.

 001022:  Applicant from UA as of 1837, 001022 (surrendered).
001130:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
          Specification: Was at 3d Bn, 4 th Marine s , UA form 0700 on 000918 to 1837 on 001022 .
         Award: Forfeiture of $502.00 pay per month for 2 months ( 1 month suspended for 3 months), restriction and extra duty for 45 days, reduction to E-1. Not appealed.
010306 :  NAVDRUGLAB, San Diego, CA , reported Applicant’s urine sample, received 010301 , tested positive for THC .
010307:  Counseling: Advised of deficiencies in performance and conduct (THC usage identified through urinalysis confirmed by Nav D rug Lab San Diego, CA msg 062150 Z of March 01), necessary corrective actions explained, sources of assistance provided.

 010315:  Counseling: Advised of deficiencies in performance and conduct (Misconduct as evidenced by conviction at Battalion NJP for being UA from 0730 on 000918 to 1837 on 001022.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.
010319 :  NAVDRUGLAB, San Diego, CA , reported Applicant’s urine sample, received 010314 , tested positive for THC .
010320:  Counseling: Advised of deficiencies in performance and conduct (THC usage identified through urinalysis confirmed by Nav Drug Lab San Diego, CA msg 192333Z of March 01), necessary corrective actions explained, sources of assistance provided.
010503 :  Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial. In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other than honorable conditions. The Applicant admitted guilt to the following violations :
 Charge I: Violation of the UCMJ, Article 86 (2 Specs) : Unauthorized absence.
          Specification 1: In that Private E_ P. N_ (Applicant), U.S. Marine Corps, while on duty, did, at Marine Air Ground Task Force Training Command, Twentynine Palms, California, on or about 010405, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0545 physical training formation at 3 rd Battalion, 4 th Marines motor pool.
         Specification 2: In that Private E_ P. N_ (Applicant), U.S. Marine Corps, while on active duty, did, at Marine Air Ground Task Force Training Command, Twentynine Palms, California, on or about 010409, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0545 physical training formation at 3 rd Battalion, 4 th Marines motor pool.
         Charge II: Violation of the UCMJ, Article 112a (2 Specs):
         Specification 1: In that Private E_ P. N_, U. S. Marine Corps, while on active duty, did, at an unknown location, between 010213 through 010227, wrongfully use marijuana.
         Specification 2: In that Private E_ P. N_, U. S. Marine Corps, while on active duty, did, at Marine Air Ground Task Force Training Command, Twentynine Palms, California, on or about 010303, wrongfully use marijuana.
010525 :  SJA review determined the case sufficient in law and fact.
010605 :  GCMCA, Commanding General, 1 st Marine Division (Rein), approved the Applicant’s request for separation in lieu of trial by court martial. The characterization of service shall be under other than honorable conditions by reason of misconduct.


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 20010625 in lieu of trial by court-martial (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 at the time of issuance, but that the Applicant’s post-service conduct warranted partial relief (C and D).

The Applicant contends that his discharge is inequitable because he was generally a good service member and because drug abuse and immaturity impaired his ability to service. 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 nonjudicial punishment proceedings for violation of Article 86 of the UCMJ. The Applicant’s violation of Article 86, for a 34-day unauthorized absence is the commission of a serious offense. Subsequent to the Applicant’s unauthorized absence, he tested positive for illegal drug use on two occasions and requested discharge in lieu of court-marital for violations of Article 112a of the UCMJ. The Applicant’s testimony before the Board and the evidence of record revealed the Applicant’s daily use of illegal drugs starting on or before September 2000. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. 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 Applicant contends that his character of service should be changed due to his post-service conduct. The Board found that the Applicant’s post-service conduct was sufficiently creditable to warrant an upgrade to his characterization of service to general (under honorable conditions). The Applicant’s career progression, evidence of a drug-free lifestyle, references and evidence of non-involvement with civil authorities demonstrate that he possess character and drive that was not evident during his tour of active duty. His post-service actions demonstrate that his illegal drug use is not reflective of his overall character. However, the Board found that the Applicant’s post-service conduct does not sufficiently mitigate his misconduct while on active duty to warrant full relief in the form of an honorable discharge. Therefore, partial relief is granted.

The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.


Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
18 Aug 95 until 31 August 2001.

 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 86, unauthorize d absence for more than 30 days 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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