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USMC | DRB | 2006_Marine | MD0600720
Original file (MD0600720.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. MD06-00720

Applicant’s Request
The application for discharge review was received on 20060502 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable . T he 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 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 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


Issues

Equity: Post service
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
L etter from Applicant, undated
 Applicant’s DD Form 214 (Member Copy 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20000808 - 20010806       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20010807              Date of Discharge: 20021121

Length of Service (years, months, days):

 Active: 0 1 0 3 15
         Inactive: None

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

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 65

Highest Rank: PFC                                    MOS: 3531 (Motor Vehicle Ope r ator)

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 3 ( 4 )                                Conduct: 3 . 9 ( 4 )

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Letter of A ppreciation, Rifle Sharpshooter 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 :

000807 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

020705 :  NAVDRUGLAB, San Diego, CA , reported Applicant’s urine sample, received 020628 , tested positive for Amphetamine, MDMA, and Methamphetamine.

020717 :  Counseling: Advised of deficiencies in performance and conduct ( Violation of UCMJ, Article 112a; did wrongfully use a controlled substance, amphetamine (582), MDMA (2153), methamphetamine (2189).) , necessary corrective actions explained, sources of assistance provided, disciplinary action and /or processing for administrative discharge.

020719 :  NJP for violation of UCMJ, Article 112a : In that PFC R_ (Applicant), did wrongfully use a controlled substance, to wit: amphetamine, MDMA, methamphetamine to which he tested positive on a urinalysis conducted 020624, CA.
         Award: Forfeiture of $ 552.00 pay per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 1 . Not appealed.
020801 :  Applicant notified of intended recommendation for separation with the least favorable character of service of under other than honorable conditions by reason of misconduct due to drug abuse, specifically Amphetamine, MDMA and Methamphetamine. The factual basis for this recommendation was that the Applicant tested positive on a urinalysis.

020801 :  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.

020816:  Applicant r efus ed Medical Officer’s Evaluation.
020913 :  Commanding Officer recommended the Applicant ’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020916:  Counseling: Advised of deficiencies in performance and conduct (Violation of Article 112a.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.
021104 :  Command er, 1st Ma rine Division (Rein), 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 20 021121 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).
Whenever a member is involved in misconduct due to drug abuse, on the first offense, commanders shall process the member for administrative separation. There is clear evidence in the service record that the Applicant used illegal drugs. Indeed, the Applicant received nonjudicial punishment on 20020719 for violation of UCMJ Article 112a Wrongful use of controlled substance (amphetamine, MDMA, and methamphetamine). Evidence of such misconduct may be used to characterize a member’s discharge under other than honorable conditions. This conduct, which forms the primary basis for determining the character of service, falls well below that required for an upgrade in characterization of service. Relief not warranted.

Equity – Post service: While 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 service, the Board 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct. At this time, the Board found that the Applicant’s statements concerning post-service conduct, without documented evidence, do not mitigate the misconduct, which precipitated discharge. No relief is granted on this basis.

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. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective
01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.

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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