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USMC | DRB | 2006_Marine | MD0600802
Original file (MD0600802.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. MD06-00802

Applicant’s Request
The application for discharge review was received on 20060524 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “ Admin Disch Board . ” The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area . The Applicant designated Civilian Counsel as the representative on the DD Form 293.
Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20070530 . 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 and reason for discharge shall not change. The discharge shall remain Under Honorable Conditions (General) by reason of misconduct due to drug abuse.
.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Decisional Issues :

Equity -- In Service
Equity -- Post- Service
Propriety/Equity -- Unknowing Ingestion
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 8)
Cover Letter from R_ R_, dtd May 12, 2006
 Exhibit 1: Affidavit from Counsel, dtd May 12, 2006
Exhibit 2: Monmouth County Sheriff’s Office Employee Evaluations (10 pgs)
Exhibit 3: Certificates awarded for police work/law enforcement (18 pgs)
 Exhibit 4: Letters of Appreciation (8 pgs)
 Exhibit 5: Newspaper Articles (2 pgs)
 Exhibit 6: DD Form 293
Exhibit A: Affidavit of Counsel and Brief of Argument (3 pgs)
Exhibit B: Affidavit of T_ A. R_ (2 pgs)
Exhibit C: Letter from Defense Counsel, dtd September 29, 1992 (2 pgs)
Exhibit D: Excerpts for Service Record (12 pgs)
Exhibit E: Excerpts for Service Record (34 pgs)
Exhibit F: Excerpts for Service Record (11 pgs)
 Exhibit G: Excerpts for Service Record (1 0 pgs)
 Exhibit H: DD Form 214
Exhibit 7: Previous Decisional Document (7 pgs)
Exhibit 8: Letter from Applicant dtd, May 19, 2006
 Employee Evaluation from Monmouth County Sheriff’s Office, dtd Jan 1, 2006 through June 30, 2006.
 Employee Evaluation from Monmouth County Sheriff’s Office, dtd July 1, 2006 through December 31, 2006.
Newspaper Article, undated
Recruit Evaluation from Trenton Police Academy, dtd April 27, 1998 through August 28, 1998.
 Trainee Evaluation from Monmouth County Sheriff’s Office, dtd September 25, 1998.
Trainee Evaluation from Monmouth County Sheriff’s Office, dtd December 14, 1998.
Employee Evaluation from Monmouth County Sheriff’s Office, dtd Sept 1998 through November 1998.
Employee Evaluation from Monmouth County Sheriff’s Office, dtd December 1998.
Employee Evaluation from Monmouth County Sheriff’s Office, dtd April 1, 1999 through April 30, 1999.
Employee Evaluation from Monmouth County Sheriff’s Office, dtd May 1, 1999 through May 31, 1999.
 Employee Evaluation from Monmouth County Sheriff’s Office, dtd February 28, 1999 through May 28, 1999.
 Employee Evaluation from Monmouth County Sheriff’s Office, dtd July 1, 1999 through December 31, 1999.
 Employee Evaluation from Monmouth County Sheriff’s Office, January 1, 2000 through Jun 30, 2000.
 Employee Evaluation from Monmouth County Sheriff’s Office,July 1, 2000 through December 31, 2000.
 Employee Evaluation from Monmouth County Sheriff’s Office, January 1, 2001 through Jun 30, 2001.
Employee Evaluation from Monmouth County Sheriff’s Office, July 1, 2001 through December 31, 2001.
 Employee Evaluation from Monmouth County Sheriff’s Office, January 2, 2002 through July 31, 200 2 .
 Employee Evaluation from Monmouth County Sheriff’s Office, June 30, 2002 through December 31, 2002.
Employee Evaluation from Monmouth County Sheriff’s Office, January 1, 2003 through June 30, 2003.
Employee Evaluation from Monmouth County Sheriff’s Office, July 1, 2003 through December 31, 2003.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19900430 - 19900502       COG
          Active: US A       19860121 - 19890120       HON
Period of Service Under Review :
Date of Enlistment: 19900503              Date of Discharge: 19921208

Length of Service (years, months, days):

 Active: 0 2 0 7 0 6
         Inactive: None

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

Age at Entry: 22

Years Contracted: 4

Education Level: 12                                 AFQT: 62

Highest Rank: LCPL                                   MOS: 0311

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 1 (7)                        Conduct: 4 .0 (7)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Sea Service Deployment Ribbon, Combat Action Ribbon, National Defense Service Medal, Navy Unit Commendation (BLT 3/5 Desert Shield/Storm AT F 900801-910430), Army Good Conduct Medal, Army Achievement Medal, Kuwait Liberation Medal


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN 6210.5.
Chronological Listing of Significant Service Events :

900427 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
920409 :  NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 920402 , tested positive for amphetamine/methamphetamine .
920424 :  Counseling: Advised of deficiencies in performance and conduct ( Failure to conform to Marine Corps drug policy ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920424:  Medical evaluation for drug/alcohol abuse found the applicant not drug or alcohol dependent.

920427:  NJP for violation of UCMJ, Article 112a:
Award: Forfeiture of $400. per month for 2 month s (susp for 6 months), restriction and extra duty for 45 days, reduction to E-2. Not appealed.
920428 :  Applicant notified of intend ed recommendation for discharge by reason of misconduct due to drug abuse with the least favorable characterization of service as under other than honorable . The basis for the separation was the Applicant’s us e of a controlled substance.

920429:  Applicant advised of rights and having consulted with counsel, elected to waive all rights.
920429:  Commanding Officer, 3 rd Battalion, 5 th Marines recommended Administrative Separation of Applicant with characterization under other than honorable condition by reason of drug abuse.
920506:  Commanding Officer, 5 th Marines recommended the Applicant be separated under other than honorable conditions.
920713:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with the least favorable characterization of service as under other than honorable. The basis for the separation was the Applicant’s use of a controlled substance.

920721 :  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board. [Extracted from documents provided by the Applicant.]

920723:  Commanding Officer 1 st Battalion 5 th Marines recommended Applicant’s discharge Under Other Than Honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was illegal use of amphetamines/methamphetamines.
920925 :  An Administrative Discharge Board, based upon a preponderance of the evidence found that the Applicant had committed misconduct due to drug abuse , that such misconduct warranted separation, and recommended discharge with a characterization of under h onorable conditions ( G eneral) .

921103 :  SJA review determined the case sufficient in law and fact.
921 2 0 8 :  Applicant discharged.

000720:  NDRB documentary record review Docket Number MD00-00148 conducted. Determination: discharge proper and equitable; relief not warranted.

Service Record Book contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921208 by reason of misconduct due to drug abuse (A) with a service characterization of under honorable conditions (general). 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).

The Applicant argues that his discharge was improper and inequitable because he was not aware that an over the counter diet pill that he purchased in Mexico contained a controlled substance and requests a change to his Narrative Reason and upgrade of characterization on that basis. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The evidence reviewed did not persuade the Board that his nonjudicial punishment and subsequent administrative separation were improper or inequitable. The Applicant admits that he purchased and consumed an unidentified medication in Mexico after receiving training that such conduct could result in ingestion of controlled substances. Given the evidence provided to the Board, the Applicant’s Commanding Officer and Administrative Discharge Board could have reasonably reached the conclusion that the Applicant knowingly used illegal drugs. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable. Relief denied.

The Applicant also requests upgrade of his discharge based upon his record while in the service. Despite a servicemember’s record of service, certain serious offenses, even though isolated, warrant separation from the Marine Corps in order to maintain proper order and discipline. 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. There is credible evidence in the record that the Applicant used illegal drugs. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable. 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 requests upgrade of his characterization based upon evidence of good post service conduct. 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was not sufficiently mitigating to upgrade the Applicant’s characterization of discharge to Honorable. Relief denied.

The following is provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, Misconduct , of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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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