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USMC | DRB | 2006_Marine | MD0600801
Original file (MD0600801.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. MD06-00801

Applicant ’s Request
The application for discharge review was received on 2006052 3 . 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.
The NDRB did note administrative error(s) on the original DD Form 214. Block 12c, Net Active Service This Period, should read: “02 06 08.” Block 2 9 , Dates of Time Lost During This Period, sho uld read: “ (24) 19970624 -19970718, (1 5 ) 19970721-19970805 .” 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 – Personal problems impacted the Applicant’s judgment.
EQUITY - Post-service conduct.

 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’s DD Form 149, dated May 8, 2006
 Applicant ’s DD Form 214
 Three pages from Applicant ’s service /medical record s
Certificate of Completion of Defined Contribution Core Competency Module, dated March 10, 2000
 Applicant ’s résum é
Partial page from Applicant ’s social security statement
 Certificate of Academic Achievement from Lewis and Clark Community College for Fall 2005
 Final Notice from Saint Antony’s Health Center, dated June 7, 2005
 Character Reference ltr from Elder S_ E. W_, Pastor, Monroe Memorial Church of God in Christ, dated May 11, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19940831 - 19950123       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19950124              Date of Discharge: 19970910

Length of Service (years, months, days):

 Active: 0 2 0 7 17 (does not exclude lost time )
         Inactive: None

 Time Lost During This Perio d:

         Unauthorized absence: 1 5 day s
         Confinement:              24 day s

Age at Entry: 18
Years Contracted: 4
Education Level: 12                                 AFQT: 79

Highest Rank: LCPL                                   MOS: 0121

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 ( 8 )                                 Conduct: 3.6 (8 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214 ): National Defense Service Medal


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 :

940830:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

 950920:  Counseling: Advised of deficiencies in performance and conduct ( L ack of motivation and discipline as evidenced by sleeping while posted as fire w atch in b arrac ks 430, at 0410, 950906.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960213:  NJP for violation of UCMJ, Article 92 : Wore a gold earring in his left ear on MCAS. Award: Forfeiture of $ 50. 00 per month for 1 month . Not appealed.
960213:  Counseling: Advised of deficiencies in performance and conduct (Continued failure to be at my appointed place of duty at the appointed time i.e. UA.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
960417:  Medical evaluation by LT D. W. G_, MC, FS, USNR .
         Assessment: Alcohol abuse, marijuana abuse.
          Plan: 1. Applicant agrees to no further cannabis use, denies use since 12/95.
         2. Agree with Level II treatment.
         3. Follow up with SACC.
960828 :  NJP for violation of UCMJ, Article 134: Knowingly received stolen property.
         Award: Extra duty for 2 0 days, reduction to E- 2. Not appealed.
961205 :  NAVDRUGLAB, Jacksonville, FL, reported Applicant ’s urine sample, received 961125 , tested positive for THC .
970624 :  Summary Court-Martial. [Charges preferred on 970321.]
         Charge: violation of the UCMJ, Article 112a:
         Specification 1 : Wrongful use of marijuana on or about or between 961113 and 961120.
         Specification 2: Wrongful use of marijuana on or about or between 970213 and 970220.
         Finding: to Charge and the specifications thereunder, guilty.
          Sentence: Forfeiture of $600.00, confinement for 30 days, reduction to E-1. CA action 970624: Sentence approved and ordered executed.
970624:  Applicant to confinement.

 970718:  Applicant from confinement .

970721:  Applicant to unauthorized absence.
970805:  Applicant from unauthorized absence.
970805:  Applicant refused substance abuse/addiction treatment.

 970806:  Counseling: Advised of deficiencies in performance and conduct ( I llegal drug involvement; specifically, usage as identified through NAVDRUGLAB Jacksonville, FL Lab accession number 371154 for the drug THC.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.
970820 :  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and alcohol rehabilitation failure. The factual basis for this recommendation was in service drug use as evidenced by a sworn statement to OID dated 971116 and summary court-martial. Applicant informed the least favorable character of service possible was under other than honorable conditions.

970820 :  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.

97082 0 :  Commanding Officer recommended Applicant ’s discharge under other than honorable conditions by reason of misconduct due to drug abuse and alcohol rehabilitation failure.

970828 :  SJA review determined the case sufficient in law and fact.

 970828 :  GCMCA, Commanding General, 2d Marine Aircraft Wing , directed the Applicant 's discharge under other than honorable conditions by reason of misconduct due to drug abuse and alcohol rehabilitation failure. For reporting purposes misconduct due to drug abuse is designated as the primary basis for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970910 by reason of misconduct due to drug abuse (A and B ) 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 ( C and D ).

The Applicant contends that his discharge is inequitable because personal hardships impaired his ability to service. 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 two retention warnings, two nonjudicial punishment proceedings and a summary court-martial conviction for violations of Articles 92, 112a and 134 of the UCMJ. The Applicant’s violations of Articles 92, 112a and 134 of the UCMJ are serious offenses. The evidence of record also shows the Applicant’s violations of Articles 86 and 112a, for unauthorized absence from 19970721-19970805 and illegal drug use in December 1995, respectively, were not adjudicated. Neither the evidence of record nor the documentation submitted by the Applicant demonstrates that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Relief is not warranted.

The Board discovered no impropriety after a review of Applicant’s case. 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 Naval service. The NDRB 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of 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. 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 92, failure to obey order/regulation, Article 112a, wrongful use of a controlled substance or Article 134, receiving stolen property .

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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