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USMC | DRB | 2006_Marine | MD0600760
Original file (MD0600760.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. MD06-00760

Applicant’s Request
The application for discharge review was received on 20060512 . 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 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 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.






PART I - ISSUES AND DOCUMENTATION


Decisional Issues

Equity – Quality of service

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20020424 - 20020507       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20020508              Date of Discharge: 20031224

Length of Service (years, months, days):

 Active: 0 1 0 7 17 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              36 days

Age at Entry: 24

Years Contracted: 4

Education Level: 12                                 AFQT: 77

Highest Rank: LCpl                                   MOS: 0811

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 3 ( 4 )                       Conduct: 4 .0 ( 4 )

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Combat Action Ribbon, National Defense Service Medal, Presidential Unit Citation, Rifle Marksman 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 :

0 20402 :  Pre-service waiver for drug s granted.
0 20419 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
030917:  NAVDRUGLAB, San Diego, CA reported Applicant’s urine sample, received 030912, tested positive for amphetamine/methamphetamine.
031001 :  Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation your positive drug urinalysis, as documented by NAVDRUGLAB message 171412Z Sep 03. Applicant informed the least favorable character of service possible was under other than honorable conditions.

03100 2 :  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to include written statements and the right to obtain copies of the documents used to support the basis for the separation.

031007:  To confinement.
031023 :  Commanding Officer , 2d Battalion, 11 th Marines, recommended the Applicant’s discharge with a characterization of service of under other than honorable conditions.
031113:  From confinement.

031114:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 112a:
          Specification: Did, on or about 031006, at unknown location, wrongfully use methamphetamine. Plea: Guilty. Findings: Guilty.
         Charge II: violation of the UCMJ, Article 128:
         Specification: Did on or about 031006, unlawfully grab LCpl R_ on the head with hands or arms. Plea: Guilty. Findings: Guilty.
         Charge III: violation of the UCMJ, Article 134: Did, on or about 031006, wrongfully solicit LCpl M_ to commit assault consummated by a battery against LCpl R_. Plea: Guilty. Findings: Guilty.
         Sentence: Forfeiture of $767.20 pay per month for 1 month, reduced to E-1, confinement for 30 days.
         CA action 031114: Sentence approved and ordered executed.
031124:  NJP for violation of UCMJ, Article 86: Did on or about 0600, 031124, absent himself from his place of duty, and did remain so until on or about 0715, 031124.
         Award: Restriction for 60 days. Intend to file appeal.
031124:  Substance Abuse Rehabilitation Program Department (SARPD), Naval Hospital Camp Pendleton. Applicant screened for alcohol and drug abuse/dependence.
         Impression: Alcohol dependence/amphetamine abuse.
         Recommendation: Residential and recommend process for discharge.
031219:  SJA review determined the case sufficient in law and fact.
0 31223 :  GCMCA, Commanding General , 1 st Marine Division (Rein), directed the Applicant's discharge with an under other than honorable conditions by reason of misconduct due to drug abuse .
031223:  Commanding General, 1 st Marine Division (Rein) letter to Commanding General, Marine Corps Base, Camp Pendleton, CA requesting that a permanent bar order be issued for the Applicant.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031224 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).

Equity – Quality of service: The Applicant states that he is a veteran of Operation Iraqi Freedom and that he served well in combat.

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. 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 a nonjudicial punishment proceedings for violation of Article 86 (UA) of the UCMJ. In addition, the Applicant plead guilty at a summary court martial to violations of UCMJ Articles 112a (wrongful use, possession, etc., of a controlled substance), 128 (assault consummated by battery) and 134 (soliciting another to commit an offense, assault). Violations of UCMJ Articles 112a, 128 and 134 are considered serious offenses 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.

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. 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.




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. 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 .


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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