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USMC | DRB | 2006_Marine | MD0600849
Original file (MD0600849.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. MD06-00849

Applicant’s Request
The application for discharge review was received on 20060601 . 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 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 - APPLICANT’S ISSUES AND DOCUMENTATION

Applicant Issues, as stated
The Applicant claims he should have been discharged based on his medical condition.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Congressman D_ H_, dtd March 29, 2006
 Applicant’s DD Form 214 (Member 4)
Military Monetary Redetermination Notice, dtd July 9, 2005
Tone Audiogram
 DD Form 2216E
OSHA Reportable Hearing Loss Notification Log
Report of Medical History (2 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20010710 - 20020830       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20020831              Date of Discharge: 20050404

Length of Service (years, months, days):

 Active: 0 2 0 7 0 4 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 24 day s
         Confinement:              29 days

Age at Entry: 1 7 (Parental Consent)

Years Contracted: 4

Education Level: 12                                 AFQT: 34

Highest Rank: LCpl                                   MOS: 0331

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3 . 9                           Conduct: 3 . 5

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


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 10705 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
030807:  Counseling: Advised of deficiencies in performance and conduct (Violation of article 113, UCMJ (misbehavior of a sentinel or lookout) at or about 0330, 030806 as a sentinel at Alpha Company position in An Najaf, Iraq was found sleeping), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
031216:  Counseling: Advised of deficiencies in performance and conduct (Violation of the following offenses: Violation of article 121, UCMJ (Wrongful Appropriation): In that PFC C_, at or about 2400, 030825, took Lance Corporal S_ bolt carrier group from his M16A2 assault rifle. During this time Lance Corporal S_ stood a four-hour guard post, a vehicle patrol and traffic control point. This jeopardized the live s of hundreds of Marines and other coalition personnel), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
040831:  NJP for violation of UCMJ, Article 86: On or about 040813, fail to go at the time prescribed to his appointed place of duty, to wit: morning formation.
 Violation of UCMJ Article 86: On or about 040823, fail to go at the time prescribed to his appointed place of duty, to wit: morning formation.
          Award: Forfeiture of $348.00 pay per month for 1 month, restriction and extra duty for 14 days. Not appealed.
041025:  NAVDRUGLAB, San Diego, CA reported Applicant’s urine sample, received 041014, tested positive for amphetamine.
041221:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: UA from 041029-041122.
         Charge II: violation of the UCMJ, Article 112a:
         Specification: Wrongfully use amphetamine.
         Finding: to Charge I and II, and the specifications thereunder, guilty.
          Sentence: Forfeiture of $795.00 pay per month for 1 month, reduced to E-1.
         CA action 041221: Sentence approved and ordered executed.
050113:  Applicant’s letter to Battalion Commander, 3 rd Battalion 7 th Marines: The Applicant states “The reason why I did drugs was because I do not want to be in the Marine Corps anymore.”

 050216 :  Counseling: Advised of deficiencies in performance and conduct ( Illegal use of a controlled substance (methamphetamine)) , necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
050216:  Applicant refusal of treatment statement.
050216 :  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct specifically pattern of misconduct and drug abuse. The factual basis for this recommendation was your NJP and SCM for drugs. Applicant informed the least favorable character of service possible was under other than honorable conditions.

0 50216 :  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to include written statements in rebuttal to this proposed separation and the right to obtain copies of the documents used to support the basis for the separation.

050216:  Commanding Officer forwarded the administrative discharge package to Commanding General, Marine Air Ground Combat Center .

050223 :  SJA review determined the case sufficient in law and fact.
050325 :  GCMCA, Commanding General directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse .
050404:  NJP for violation of UCMJ, Article 108: Did on or about 041029, without proper authority, through neglect lost all military gear issued to him.
         Award: Forfeiture of $617.00 pay per month for 2 months, restriction and extra duty for 45 days. Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050404 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).

The Applicant is requesting a discharge characterization upgrade to honorable. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as under other than honorable conditions 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 the award of nonjudicial punishment (NJP) on 2 occasions and one Summary Court-Martial hearing for violations of the Uniform Code of Military Justice (UCMJ). The Applicant’s misconduct included unauthorized absence, misbehavior of a sentinel or lookout, wrongful appropriation, wrongful use of amphetamines and neglect and loss of military gear. The Applicant’s conduct which forms the primary basis for determining the character of his service, reflect his misconduct, and falls below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief is therefore denied.

The Applicant claims he should have been discharged based on his medical condition. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The Applicant submitted post service documentation claiming that he should have been discharged based on hearing loss and a bad stress fracture that happened during his period of service. After review of the documentation the NDRB does not see sufficient medical evidence to exculpate the Applicant’s misconduct. In fact, the NDRB sees no connection between the Applicant’s misconduct and his medical condition. 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. 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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