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Docket No. MD05-00552

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

ex-Pvt, USMC
Docket No. MD05-00552

Applicant’s Request

The application for discharge review was received on 20050208.  The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050519.  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:

1.  “I, B_ R. K_ (Applicant), am requesting an upgrade from OTHER THAN HONORABLE CONDITIONS to GENERAL/UNDER HONORABLE CONDITIONS so that I can be re-instated into the United States Marine Corps.  I truly regret the choice that I made which caused my separation from the United States Marine Corps.  I have served in Operation Iraqi Freedom with the 3^rd BN 4^th MAR and due to my past experience I believe I would be an asset to the Marine Corps.  I am looking forward to help protect and serve our country once again as a United States Marine.”

Documentation

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

Letter of recommendation, dated August 27, 2004
Character reference, dated August 23, 2004
Character reference, undated
Character reference, undated
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		010625 - 020609	COG

Period of Service Under Review:

Date of Enlistment:  020610		Date of Discharge:  040126

Length of Service (years, months, days):

	Active:    01  07  16
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  42

Highest Rank:  PFC			MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (5)			Conduct:  3.9 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  RSB, NDSM, SSDR with 1 Star, PUC, CAR

Days of Unauthorized Absence:  None

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:

010621:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

030911:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 030908, tested positive for THC.

031015:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse.  The least favorable characterization of service is an Other Than Honorable.  The Commanding Officer is recommending that the Applicant receive an Under Other Than Honorable Conditions discharge.

031015:	Applicant advised of rights and having consulted 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.

031021:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 112a (2 specs):
	Specification 1: Wrongful use of marijuana on or about 030820 to 030903.
	Specification 2: Wrongful use of marijuana on or about 030916 to 030930.
	Finding: to Charge the specifications and I thereunder, guilty.
	Sentence: Confinement for 20 days, reduction to E-1.
	CA action 031021:  Sentence approved and ordered executed. 

031021:	Counseled for deficiencies in performance and conduct.  [Violation of Article 112a of the UCMJ (wrongful use of the controlled substance: THC.]  Necessary corrective actions explained, sources of assistance provided.

031022:	Applicant to confinement.

031106:	Applicant from confinement.

031106:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  CO’s comments: “The factual basis for this recommendation was your wrongful use of THC (marijuana) as indicated by NAVDRUGLAB SDIEGO MSG 111400ZSep03.  Your failure to conform to the Marine Corps policy concerning illicit drugs is unacceptable.”  

031114:	Medical evaluation for drug abuse found the Applicant to have had an isolated incident of drug abuse, not drug dependent [drug dependent].  
	Recommendation:  Attend MDAC.  Process for Administrative Separation.

031210:	SJA review determined the case sufficient in law and fact.

031215:	GCMCA, Commanding General, 1^st Marine Division (Rein), 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 20040126 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).

Issue 1.  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, 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. 

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 pled guilty at a summary court-martial to 2 specifications of violation of UCMJ Art 112a, wrongful use of a controlled substance.   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.

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.

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 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.