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USMC | DRB | 2006_Marine | MD0600723
Original file (MD0600723.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. MD06-00723

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 did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070223 . 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 General (Under 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: “ GENERAL (UNDER HONORABLE CONDITIONS) ” and Block 29, Dates of Time Lost During This Period, should read: 961217 – 970122 (37). The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.




PART I - ISSUES AND DOCUMENTATION

Decisional Issues :

Equity - Quality of service
Equity - I solated incident

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4 copy)
Ltr from Applicant, undated
 Character Reference ltr from D _ V. D _, dtd January 18, 2006
Character Reference ltr from T_ C_, Housing Division, dtd April 5, 2006
Character Reference ltr from J_ T_, dtd January 29, 2006
Character Reference ltr from E_ E. T_, undated
Character Reference ltr from C_ D. W_, undated
 Character Reference ltr from P_ S_, Security Staff Manager, undated
 Character Reference ltr from C_ C_, undated
 Character Reference ltr from T_ R . L_, Director, undated


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19931019 - 19940912       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19940913              Date of Discharge: 19970221

Length of Service (years, months, days):

 Active: 0 2 0 5 0 8 (Does not exclude lost time.)
          Inactive: None

Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              37 days

Age at Entry: 1 9

Years Contracted: 4

Education Level: 12                                 AFQT: 43

Highest Rank: LCpl                                   MOS: 1371

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 ( 8 )                       Conduct: 4.4 ( 8 )

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbon, Meritorious Mast, Expert Rifle Badge, Sharpshooter Pistol Badge


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
GENERAL (UNDER HONORABLE CONDITIONS) / MISCONDUCT, authority: MARCORSEPMAN 6210.5.
Chronological Listing of Significant Service Events :

931006 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

931019:  Pre-service waiver for drug s granted.

961008 :  NAVDRUGLAB, San Diego, CA , reported Applicant’s urine sample, received 960927 , tested positive for Cocaine.

961217 :  S pecial C ourt-Martial.
         Charge: violation of the UCMJ, Article 112a.
         Specification: Did, on or about or between 960918 and 960923, wrongfully use cocaine.
         Finding: to Charge and the Specification thereunder, guilty.
          Sentence: Forfeiture of $250.00 pay per month for 2 months, reduced to E-1, and 45 days of confinement.
          CA action: [Not in the record] .

961230 :  Applicant notified of intended recommendation for discharge as general (under honorable conditions) by reason of misconduct due to drug abuse. The factual basis for this recommendation is the Special Court-Martial dated 961217. Applicant informed the least favorable character of service possible was as general (under honorable conditions).

970103 :  Applicant 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.

970110:  Consultation Report by B. L. G_, C APT MC , USN: Impression: Drug abuse, no code , IAW MCO P5300.12 discharge.
         Recommendations: 1. If retained, drug related unit Level I .
2. Expeditious processing for administrative separation due to drugs .

970115 :  Commanding Officer, 1 st Combat Engineer Battalion recommended that the Applicant be discharge d with a general (under honorable conditions) by reason of misconduct due to drug abuse.

970205 :  SJA review determined the case sufficient in law and fact.
970205 :  Commanding General , 1 st Marine Division (Rein) directed that the Applicant shall be d ischarge d with a general (under 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 19970221 by reason of misconduct due to drug abuse (A) and (B) with a service characterization of general (under 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 ).

Equity – Quality of service : The Applicant contends that he had an outstanding service record.

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. A general 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 a special court martial wherein he plead guilty to violation of UCMJ Article 112a (wrongful use, possession, etc., of a controlled substance). Violation of UCMJ Article 112a is considered a serious offense, for which a punitive discharge is authorized if adjudged by a special or general court martial. 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. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

Equity – Isolated incident : The Applicant contends that his misconduct was a one time isolated incident.

There is credible evidence in the record that the Applicant used illegal drugs. 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 but in the Applicant’s case the Separation Authority directed a characterization of service of General (Under Honorable Conditions). 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.

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 P1900.16E), effective 31 Jan 97 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 112a (wrongful use, possession, etc., 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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