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Docket No. MD05-01316

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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD05-01316

Applicant’s Request

The application for discharge review was received on 20050801.  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 20060413.  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

Issues, as stated

Applicant’s issues, as stated on an attached letter to the Board:

“To whom it may concern,

I submit this letter on my behalf along with form DD 293 with hopes that you will find my request for an upgrade to the discharge I received from the United States Marine Corps in May 2000 is warranted.  I realized over the past five years each and every year what a grave mistake I had made.  There has not been a day that goes by that I do not regret the decision I had made, especially when all I wanted to do is honorably serve my country whether it be in war or peacetime.  I have only been able to find peace within myself if I were given a second chance to honorably serve our country.  I am writing this letter to specifically ask for an upgrade of the reenlistment code I had received not to the whole discharge itself, nor am I asking for the removal of the reason for the discharge, I only ask that you find it in your heart to give me the chance to regain my honor for serving our country by upgrading my re-enlistment code from the re-4 that I had received to an re-3, which in turn would give me the chance to do what I have hoped to do for the past five years following my discharge.  I am not here to offer any excuse to the decision I had made except that I was young and stupid and did not realize the consequences that it would bring, especially being as close to my EAS as I was.  I D_ C. Q_(Applicant) would like to thank you for your time.

Respectfully,

[signed] D_ C. Q_(Applicant)”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Privacy release statement signed by Applicant, dtd June 22, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19951030 - 19960617	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19960618		Date of Discharge:  20000503

Length of Service (years, months, days):

Active:    03  10  16
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  11				AFQT:  54

Highest Rank:  Cpl				MOS:  3381

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (9)				Conduct:  4.6 (9)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Meritorious Unit Commendation, Marine Corps Good Conduct Medal; Letter of Appreciation; Rifle Expert Badge

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:

951028:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

951030:	Pre-service waiver granted.

960618:	Pre-service waiver for drug use in DEP granted.

980323:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Article 92 of the Uniform Code of Military Justice.  Specifically, intentionally refused to obey an order from an SNCO while in the line of duty.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980403:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Apr/May/Jun for promotion quarter because of recent page 11.  Applicant chose not to make a statement.

980624:	Counseling:  Advised of deficiencies in performance and conduct (Unprofessional conduct by being alone with another Marine’s wife in BEQ room, which gives the appearance of impropriety.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000104:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 991227, tested positive for THC.

000417:	NJP for violation of UCMJ, Article 112a:  Cpl Q_(Applicant), did at MCRD, PISC, on or about 16 Dec 99, wrongfully use marijuana, a controlled substance, to wit: Message #042046Z Jan 00 from the NavDruglab, Jacksonville, FL, stating that SNM’s urine sample tested positive for THC.
	Award:  Forfeiture of $642 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  Forfeiture suspended for 6 months.  Appealed.  No further information found in service record.

000419:	Applicant notified of intended recommendation for general (under honorable conditions) discharge by reason of misconduct due to drug abuse.  The factual basis for this recommendation was discreditable illegal use of drugs (marijuana).  Applicant informed the least favorable characterization of service possible is under other than honorable conditions.

000419:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

000419:	Commanding Officer, Headquarters and Service Battalion, Marine Corps Recruit Depot, Parris Island, SC recommended Applicant’s general (under honorable conditions) discharge by reason of misconduct due to drug abuse.  The factual basis for this recommendation was illegal use of drugs (marijuana).  Commanding Officer’s comments:  “Based upon the enclosures it is my opinion that a general (under honorable conditions) characterization of service is warranted.  Retention of the respondent would adversely effect the morale, discipline, and military effectiveness of this organization.” 

000428:	SJA review determined the case sufficient in law and fact.

000428:	GCMCA, Commanding General, Marine Corps Recruit Depot/Eastern Recruiting Region, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000503:	Applicant found qualified for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000503 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).  

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 nonjudicial punishment proceedings for violating Article 112a of the UCMJ.  The Applicant was also counseled for violating Article 92 of the UCMJ.  Violations of Articles 92 and 112a are considered serious offenses.  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.  Relief is not warranted.

The Applicant implies that his discharge was inequitable because he was “young and stupid” and did not realize the consequences of his actions, especially since he was close to completing his contract.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  While the Applicant may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, 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 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 any post-service documentation for the Board to consider.  Relief denied.

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.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 and order/regulation or Article 112a, illegal use of a controlled substance.

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