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USMC | DRB | 2006_Marine | MD0600800
Original file (MD0600800.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. MD06-00800

Applicant’s Request
The application for discharge review was received on 20060523 . 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 20070315 . 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:

Propriety – Basis for discharge


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (State Director of Veterans Affairs-6)
 Excerpts from Service Record (11 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20010524 - 20010925       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20010926              Date of Discharge: 20030502

Length of Service (years, months, days):

 Active: 0 1 0 7 0 7
         Inactive: None

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

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 49

Highest Rank: LCpl                                   MOS: 3531

Final Enlisted Performance Evaluation Averages (number of marks):

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

*Not Available


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 :

010522 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
030130:  Physical Evaluation Board found Applicant unfit to continue active duty because of a physical disability. Applicant will be separated within the next 6 to 8 weeks due to a physical disability. Orders directing this action are forthcoming from HQMC (MMSR-4).
030204:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 030129, tested positive for THC.
030207:  Alcohol Treatment Facility, Naval Hospital Marine Corps Base Camp Lejeune. Applicant has been evaluated and counseled this date regarding his substance abuse. Applicant refuses treatment for substance abuse. Applicant provided information regarding treatment at a Veteran’s Hospital nearest to his home of record.
030225:  NJP for violation of UCMJ, Article 112a: On or about 030127, wrongfully use marijuana.
 Award: Forfeiture of $645.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Not appealed.
030227:  Statement of Understanding of Treatment for Alcohol/Substance Dependence. The Applicant refuses to accept treatment through the military and requested to go through the Veterans Administration Medical Center (VMAC) upon discharge.
03 0305 :  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 was NAVDRUBLAB Jacksonville FL message dated 041852Z Feb 03. Applicant informed the least favorable character of service possible was under other than honorable conditions.

030305 :  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.

030307 :  Officer in Charge , 2d Transportation Support Battalion (Rear), recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse .
0 30422 :  SJA review determined the case sufficient in law and fact.
030422 :  GCMCA, Commanding General II Marine Expeditionary Force, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse .
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030502 by reason of misconduct due to drug abuse (A and B ) with a service characterization of u nder other than honorable conditions . After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable ( C and D ). The Board presumed regularity in the conduct of governmental affairs ( E ).
Propriety – Basis for discharge: The Applicant contends that prior to being discharge he was set to be discharged for medical reasons with a general under honorable conditions characterization of service.

For the Applicant’s edification, DoD disability regulations do not preclude a disciplinary separation. SECNAVINST 1850.4E stipulates that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.

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.

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 112a of the UCMJ. 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.

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. 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 .

E . 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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