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USMC | DRB | 2006_Marine | MD0600718
Original file (MD0600718.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD06-00718

Applicant’s Request
The application for discharge review was received on 20060504 . 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 designate d a private representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070215 . 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 24 ,
Character of Service , should read: “ UNDER OTHER THAN HONORABLE CONDITIONS .” 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

Issues, as stated

 Propriety: Denied due process
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 ( Service 2)
Applicant's statement (4 pages)
Certificate of Acceptance, dtd December 6, 1991
42 pages from Applicant’s service record book (some duplicates)
Recognition of outstanding performance from Delta College, Academic year of 1995-1996 , undtd
Character Reference ltr from D _ S. W, M. A., Speech Instructor, South Texas Community College, dtd March 27, 2001
Character Reference ltr from B_ B_, Ph. D., T he University of Texas at Brownsville and Texas Southmost College, dtd August 27, 2001
Character Reference ltr from A_ T_, Supervisor, Circulation & R eserves Services, The University of Texas at Brownsville and Texas Southmost College, dtd May 22, 2003
Character Reference ltr from N_ N. O_, Ph.D, Assistant Professor, Department of Criminal Justice, The University of Texas at Brownsville and Texas Southmost College, dtd September 30, 2003
College Transcript, (3 pages)
Certificate of completion from The University of Texas at Brownsville and Texas Southmost College, Criminal Justice Institute, Law Enforcement Academy, dtd September 30, 1998
Character Reference ltr from O_ M_, Captain, Mercedes Police Department, dtd January 21, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19911206 - 19921018       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19921019     Date of Discharge: 19941121

Length of Service (years, months, days):

 Active: 0 2 0 1 0 3
         Inactive: None

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

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 55

Highest Rank: LCpl                                   MOS: 1371

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 2 ( 7 )                                Conduct: 4 . 2 ( 7 )

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


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN 6210.5.
Chronological Listing of Significant Service Events :

911126 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

940825 :  NJP for violation of UCMJ, Article 112a : Wrongfully used THC on or about 940808 aboard Camp Pendleton or in the surrounding area.
Award: Forfeiture of $ 466.00 pay per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 2 . Not appealed.
94090 1 :  Medical entry: NARED, N aval Hospital, Camp Pendleton , G_ A. G_, Health Care Evaluator: Patient (Applicant) reported on time w/ uniform of the day w/Health, Service and SACO file fro Drug Screen Evaluation following positive drug screen w/THC in urine. Test done on or about 940728. Patient had his rights explained to him and has refused to discuss drug use with me. Patient returned to command for administrative process for separation. Cmd will need to reschedule patient when he is ready to discuss his drug use . I recommend that patient be referred to legal before rescheduling.

940908:  Medical entry: Naval Hospital, Camp Pendleton, CAPT B. L. G_, MC, USN: 20 year old single male E-2, USMC (Applicant) with 1 year and 11 months continuous service was referred by command for MOE 2 o positive UDS.
         Drug used: THC. Method/Freq: smoke/3x    From – To: 15 yo – 8/94. Used 1x while on AD – positive UDS.
         Impression: Drug abuse, cannabis based on MCO P5300.12 definition – no code, not dependent.
         Recommendation: Expeditious processing for separation.
940908 :  Applicant certifies understanding of VA t reatment availability and location of facility nearest home of record.

941019 :  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with characterization of service as under honorable conditions. The factual basis for this recommendation was NJP 940825 which evidenced the illegal use of drugs. Applicant informed the least favorable character of service possible was as under honorable conditions.

941019 :  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.

941019 :  Commanding Officer , 7 th Engineer Support Battalion, recommended that the App licant be dis charge under other than honorable conditions by reason of misconduct due to drug abuse.

941021:  SJA review determined the case sufficient in law and fact.
941024 :  Command ing General , 1 st Force Service Support Group, directed the Applicant’s discharge under other than honorable conditions by reason of misconduct due to 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 19941121 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 dischar ge was proper and equitable (B an d C). The Board presumed regularity in the conduct of governmental affairs (D).
There is credible evidence in the record that the Applicant used illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Board found no indication in the record that the Applicant was inequitably or improperly denied due process in either his NJP or administrative separation proceedings. The Applicant’s allegation that he did not understand his rights and was “discouraged” from seeking counsel do not refute the presumption of regularity in this case. Furthermore, the Board noted that the record indicates that prior to being notified of the recommendation for administrative separation the Applicant exercised his right to remain silent during drug screening, indicating that he was capable of understanding his options. The record also indicates that the Applicant used marijuana at least twice prior to his active duty service, in contrast to his pre-service claims of non-use. The evidence of record does not demonstrate that the Applicant was misled or “naïve” in any manner, or not responsible for the conduct that formed the basis of his discharge. The Board took note of the documents Applicant submitted indicating that he was notified of the recommendation for administrative separation on 19940921 and again on 19941019. The Applicant’s record does not indicate why a second, identical, notification occurred; however, based on the fact the separation authority acted on the second, identical, recommendation of 19941019, the Board concluded that the most likely explanation was that the original notification, acknowledgment of rights, and recommendation were misplaced and/or misrouted and needed to be re-submitted. The Board found no impropriety, nor prejudice to the Applicant, in this event. Relief denied.

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. 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 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 any claims of post-service accomplishments or any additional evidence related to this discharge. 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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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