Author: CAP
Last saved by: joyce.meeks
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Docket No. MD05-00515

DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

 ex-Pvt, USMC
Docket No. MD05-00515

Applicant’s Request

The application for discharge review was received on 20050202.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Chicago, Illinois.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington National Capital Region or Washington DC area.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050511.  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/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“ISSUE 1:  Enclosed is a Record of Baptism and a certificate of Attendance to Faith Classes. These two documents indicate that I received more than Military training and education in boot camp, I also found religion and a sense of well being which made me realize that what I want is to be a Marine and serve my Country.

ISSUE 2:  I have also enclosed a copy of The Physical Fitness Award I received in boot camp as an example of my capabilities.  If allowed to return to the Marines I will push myself to always be the best that I can be and represent my Country with a great sense of pride and dedication.  I will also support every Marine in their duties and protect the freedom of our great Country to the best of my ability, and beyond.

ISSUE 3:  In Boot Camp I was the Squad Leader during the entire cycle, never being replaced.  I stood fire watch twice a night, almost every night, and would also relieve another recruit standing fire watch if I noticed he needed to get some sleep so he would be prepared for the next day’s activities. I realized as Squad Leader not all individuals are of the same strength or have the same endurance potential, so as Leader I helped them in very way I could.

ISSUE 4:  I am requesting that my discharge be upgraded which will enable me to re-enlist.  I have always wanted to be a Marine, and I truly regret my choice and lack of judgment, which took away my ability to grow and become a better Marine and remain in the Marine Corps. If allowed to re-enlist I realized the possibility of being detailed to Iraq, and I am willing and up for that challenge and responsibility. I would proudly serve and defend our Country.

Issue 5.  I understand that the Marines follow a strict no-tolerance policy and that the transgression I was involved in had consequences. Unfortunately the consequences were not what I wanted to happen, and I can assure you it will never happen again.  I hope that with this application, I will be able to untarnished my Military record, re-enlist and prove that I am worthy to wear the Marine Corps Uniform once again, serve my Country and defend our freedom and beliefs. I am a Marine that has messed up, not a messed up Marine.
Thank you for your time and I appreciate any consideration you could grant me
regarding this matter.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Statement from Applicant, undated and unsigned
Letter from Sgt J_ A. E_, Department of Police, City of Chicago, undated
Certificate of Physical Fitness Achievement, Marine Corps Recruit Depot, San Diego,
    CA dated May 9, 2003
Record of Baptism, Archdiocese for the Military Services, dated May 4, 2003
Certificate of Attendance, Catholic Faith Classes, dated May 4, 2003
VA Form 9 Appeal to Board of Veterans’ Appeals, dated August 19, 2004
Letter from Applicant to NDRB Executive Secretary, undated, received at NDRB on
    March 16, 2005
Applicant’s DD Forms 214 (Member copies 1 and 4)
Letter from Applicant, dated March 28, 2005

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USMCR(J)		030122 - 030210	COG

Period of Service Under Review:

Date of Enlistment:  030211		Date of Discharge:  030908

Length of Service (years, months, days):

	Active:    00  06  28
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  81

Highest Rank:  PFC			MOS:  9971

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, REB

Days of Unauthorized Absence:  None

*No marks found in Applicant’s service record.

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:

030115:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

030610:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 030606, tested positive for THC.

030618:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongful use of a controlled substance:  THC:  28ng in system while attached to Stud Admin Co, SOI (W) on or about 030603.
Awarded forfeiture of $575.00 per month for 2 months, restriction for 60 days, reduction to E-1.  Not appealed.

030626:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement (THC:28) identified through urinalysis confirmed by Navy Drug Lab San Diego, CA message (102141ZJUN03)].  Necessary corrective actions explained.

030626:	Applicant was seen by substance abuse counselor at CSACC, Camp Pendleton, CA following a command referral and refused medical officer evaluation.  Substance abuse counselor recommended Applicant for administrative separation.  

030715:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse.  The least favorable characterization of service which you may receive is an under other than honorable conditions.

030715:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

030715:	Commanding Officer, H&S Battalion, SOI recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer's comments (verbatim):  The factual basis for this recommendation is Private H_'s wrongful use of marijuana.  Based on the urinalysis test given on 3 June 2003, Private H_ tested positive for marijuana which was later adjudicated at nonjudicial punishment.  His willful use of marijuana is a direct violation of the Marine Corps' policy on drug abuse and constitutes a disregard for authority and that policy.  Through his actions, Private H_ has demonstrated that he no longer possesses the potential for continued honorable service in the Marine Corps.

030718:	GCMCA, Commanding General, Marine Corps Base, Camp Pendleton, CA directs Applicant to voluntary leave for an indefinite period while his administrative separation is being reviewed.

030722:	SJA review determined the case sufficient in law and fact.

030728:	GCMCA, Commanding General, Marine Corps Base, Camp Pendleton, CA directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030908 under other than honorable conditions for misconduct due to drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issues 1, 2 and 3:  The Applicant states that, during his recruit training, he found religion and a sense of well-being, received a physical fitness award, and acted as a squad leader for an entire cycle helping other Marine recruits as best he could.  The NDRB recognizes that serving in the Marine Corps is very challenging and that the Applicant served to the best of his ability.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  While the NDRB respects the fact that the Applicant tried, his service is equitably characterized as being performed under other than honorable conditions. Relief is not warranted.

Issue 4:  The NDRB acknowledges the Applicant's regret in his choice to abuse (use) drugs and his realization that he displayed a lack of judgment at the time he was in service.  However, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of the Applicant’s case.  Relief on this basis is not warranted.

Additionally, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other branch of the Armed Forces.  The NDRB is not authorized to change a reenlistment code.  Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

Issue 5:  The Applicant is correct in stating that the Marine Corps follows a "no-tolerance policy" with respect to drug abuse.  Despite a service member’s prior record of service, drug offenses, even though isolated, warrant separation from the Marine Corps in order to maintain proper order and discipline.  The Applicant’s service record is marred by the award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated.  Regulations limit the Board’s review, as stated above, to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief on this basis is also denied.

The following is provided for the edification of the Applicant.  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 Marine Corps.  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 documentation for the Board to consider.

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 additional documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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 P1900.16F), effective 01 September 2001 until Present.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.