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USMC | DRB | 2006_Marine | MD0600683
Original file (MD0600683.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-LCpl, USMC
Docket No. MD06-00683

Applicant ’s Request
The application for discharge review was received on 20060424 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable . The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant designated the American Legion a s the representative on the DD Form 293.
Decision

A personal appearance discharge review was conducted in the Washington, D.C. Metropolitan area on 20070516. After a thorough review of the records, supporting documents, f acts, 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 4 to 1 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.




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THIS IS THE CORRECT SHELL FOR DRUG ABUSE, EFFECTIVE 31 January 97 until 31 August 2001.

SPD               Reason on DD214                    English Description

GKK1              MISCONDUCT                         Drug abuse (board)
HKK1              MISCONDUCT                         Drug abuse (board waived)
JKK1              MISCONDUCT                         Drug abuse (no board)

Characterization of service is written “HONORABLE”, “GENERAL (UNDER HONORABLE CONDITIONS)” or “UNDER OTHER THAN HONORABLE CONDITIONS” (See page B-7 of MCO P1900.16E, effective 18 Aug 95)

PART I -

APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted by Applicant’ s representative, superseding previous issues.

1. (Equity Issue) Based on our review of the record and on behalf of this former member, we request that the Board also consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.

2. (Equity Issue) Former Member was hampered by youth and inexperience but still was an exemplary Marine who deserved a second chance as evidenced by support from his immediate chain of command.

Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’s DD Form 214 (Member 4)
Eight pages from Applicant ’s service record
 Applicant ’s Meritorious Mast, dated March 17, 1999
 Applicant ’s Certificate of Achievement from Marine Corps Association , dated March 17, 1999
 Applicant ’s Certificate of Commendation, dated September 18, 1998
 Applicant ’s Certificate of Promotion to Corporal (Meritoriously) , dated December 2, 1998
Letter from Department of Veterans Affairs to Applicant , d ate d March 18, 2001 (2 pages)
 Applicant ’s driver’s license file , dated January 17, 2006 (2)
Applicant’s driver’s license file, dated April 30, 2007 (2 pages)
 Applicant ’s police record check, State of Illinois, dated February 2, 2006 (2)
MedTox Laboratories drug screen results, dated April 15, 2000 (2)
Quest Diagnostic s drug screen report, dated May 23, 2003 (2)
ABN AMRO Mortgage Overview Existing Loan, dated May 10, 2007
2006 Du Page County Real Estate Tax Bill
 Character Reference l etter from M_ Z_, AT&T Illinois, dated March 4, 2006 (2)
Character Reference letter from I_ F_, AT&T, Installation and Repair, dated May 9, 2007
Character Reference letter from C_ R_ W_, dated May 10, 2007
Character Reference letter from L_ W_, dated May 12, 2007
Character Reference letter from LCpl M_ D. C_, dated April 23, 2007
 Character Reference letter from M_ H_, dated May 4, 2007
AT&T employment verification, dated April 30, 2007
 Applicant ’s certificate of marriage of March 16, 2002 (2)
Applicant ’s son ’ s birth certificate on September 19, 2002 (2)
Applicant’s stepson’s birth certificate on February 22, 1996
 Applicant ’s Certificate of Completion of Basic Installation, undated (2)
Applicant ’s Certificate of Completion of Basic Repair, dated August 21, 2003 (2)
Applicant ’s Certificate of Completion of Find and Fix Cable Repair, undated (2)
Applicant ’s Certificate of Completion of DSL for I/R Technicians, undated (2)
Applicant ’s Certificate of Completion of ISDN for I and R, dated June 28 through June 30, 2005 (2)
Applicant’s Certificate of Completion of Overview of Customer Interaction, undated
Certification as EMT-Basic, dated December 18, 2006
EMT License, State of Illinois, expiration date January 31, 2011
Student Academic Record, College of Du Page, dated May 7, 2007
 Certificate of completion (Highest Honors), College of Du Page EMT program, dated December 20, 2006
White House Communications Agency Certificate of Appreciation, dated October 12, 2006
American Legion Certificate of Appreciation, dated November 27, 2003
Two photographs

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19960923 - 19961020       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19961021              Date of Discharge: 20000209

Length of Service (years, months, days):

 Active: 03 03 19
         Inactive: None

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

Age at Entry: 20

Years Contracted: 4
Education Level: 1 3                                  AFQT: 97

Highest Rank: Cpl                                    MOS: 0311 (Rifleman)/ 0341 (Mortarman)

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 ( 6 )                                 Conduct: 4.5 (6 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Sea Service Deployment Ribbon, Certificate of Commendation


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 :

960922:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
960923 :  Pre-service waiver (MGD) granted.
990901 :  NJP for violation of UCMJ, Article 112a: In that Cpl C_ ( Applicant ), did, on or about 990816, wrongfully use a controlled substance, to wit: MDA/MDMA.
         Award: Forfeiture of $ 400.00 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 3 . Not appealed.
991005 :  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. Applicant informed the least favorable character of service possible was under other than honorable conditions.

991005 :  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.

991022 :  Commanding Officer, 2d Battalion, 6 th Marines, recommended that Applicant be discharged for misconduct due to drug abuse with a characterization of service as under other than honorable conditions, and that such discharge be suspended for a period of 12 months. The factual basis for this recommendation was incident of illegal drug use as identified … where LCpl C_ ( Applicant ) admitted to in-service use of ecstasy. Commanding Officer’s comments: “ Lance Corporal C_ received NJP as a result of admitting to using the drug MDA. He did not test positive on an urinalysis. Prior to this incident, Lance Corporal C_’s performance of duty can best be described as superlative. Tactically and technically proficient, he was a stalwart leader in his company. Although this incident was a severe lapse in sound judgment, Lance Corporal C_ still possesses the desire and drive to continue to serve honorably. He is genuinely remorseful for his conduct and has given me his word that he will avoid situations of this type in the future. Based on Lance Corporal C_’s past performance and his potential for future service, I am confident that there will be no repeat of this type of behavior and therefore recommend that he be given a suspended discharge. ”
991025:  Substance abuse/dependence evaluation at ATF, CLNC, by M. A. P_, LCDR, MSC, USN, Clinical Psychologist.
         Drug abuse.
         Recommendations:
         No treatment indicated at this time.
         Individual is found psychologically fit for full duty and returned to same.
         Recommend Applicant be processed for administrative separation per MCO P1900.16.
         Recommend IMPACT at ATF, CLNC.

 991025:  Applicant acknowledged receipt of Statement of Understanding of treatment for substance abuse at a Veterans Administration Medical Center.
991109 :  Commanding Officer, 6 th Marines , recommended that Applicant ’s discharge under other than honorable conditions by reason of misconduct due to drug abuse be suspended for 12 months.

000106 :  SJA review determined the case sufficient in law and fact.

 000111 :  GCMCA, Commanding General, 2d Marine Division, II Marine Expeditionary Force , directed the Applicant 's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010601:  NDRB documentary record review Docket Number MD01-00219 conducted. Determination: discharge proper and equitable; relief not warranted.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000209 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 g overnmental affairs (D).
In regard to the Applicant ’s second issue, there is credible evidence in the record that the Applicant used illegal drugs, and the Applicant acknowledged such use. 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 Separation Authority did not err, or abuse his discretion, in deciding to not accept the Applicant’s Commanding Officer’s recommendation for a suspended discharge. 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.

In regard to the Applicant’s first issue, 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. The Board acknowledged the Applicant’s credible post-service conduct; but also noted that the Applicant committed his misconduct as a noncommissioned officer and section leader over several junior Marines in an infantry battalion beginning its training cycle in preparation for an operational deployment. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge. Relief denied.

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 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 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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