Author: CAP
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Company: NCPB

Docket No. MD05-01417

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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD05-01417

Applicant’s Request

The application for discharge review was received on 20050824.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060512.  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 the application:

“It has been 5 years, I have grown up considerably and would like a second chance to serve my country, in the right manor as an upstanding marine
I believe my discharge (Re Entry Code) is incorrect I know what I done was wrong.  I made a huge mistake and I am requesting the opportunity to correct it.  By Re-Enlisting and doing whatever it takes to serve my country in the way I should have done before.
If this request were granted, I would provide the service and my country the commitment it deserves.  I have matured and now know my life is dedicated to righting my wrong.  I had no other problems in my entry- level time served.  I made a mistake on leave in between bootcamp and MCT I ask you allow me to correct this and make a life for myself, family and son.  Thank you for taking the time to review this.

Sincerely
[Signed] C_ G_ B_(Applicant)”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19990303 - 19990406	ELS
	                USMCR (DEP)	19990831 - 19990907	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990908		Date of Discharge:  20000324

Length of Service (years, months, days):

Active:    00  06  17
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  56

Highest Rank:  PVT			MOS:  9900

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (2)				Conduct:  3.7 (2)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksman 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:

990830:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

990831:	Pre-service waiver for drugs granted.

000113:	NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 000106, tested positive for THC.

000120:	NJP for violation of UCMJ, Article 112a, At CoF, MCTBn, SOI, MCB, Camp Lejeune , between 991216 to 991230, wrongfully used Marijuana.
	Award:  Forfeiture of $502 per month for 2 months, restriction for 60 days.  Not appealed.

000120:	Counseling:  Advised of deficiencies in performance and conduct (Specifically, illegal usage of a controlled substance Marijuana as verified by the NAVDRUGLAB MSG# R 132357Z JAN 00.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

000121:	Applicant’s handwritten statement.

000131:	Clinical Psychologist, M.A. P_, LCDR, MSC, USN evaluated Applicant for substance abuse/dependence.  The results of the evaluation are as follows: Drug abuse, isolated incident.  Recommendations: No treatment indicated at this time.  Individual is found psychologically fit for full duty and returned to same.  Recommend SNM be processed for administrative separation.

000131:	Applicant signed statement of understanding of treatment for substance abuse at a VA medical center.

000131:	Platoon Commander, Separations Platoon recommended Applicant for administrative separation for marijuana use.

000202:	Commanding Officer, Marines Awaiting Training Company recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to illegal drug use.
000203:	Applicant notified of intended recommendation for discharge with the 
                        least favorable characterization of service as other than honorable    
                        conditions by reason of misconduct based on drug use.  The factual basis 
                        for this recommendation was use of marijuana as identified by positive 
                        unit urinalysis.

000203:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and submit a written statement.

000204:	Commanding Officer, Headquarters and Support Battalion recommended via Commanding Officer, School of Infantry Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “Private B_(Applicant) demonstrated a blatant disregard for the Marine Corps’s policy towards drug use and has shown a definite lack of Honor, Courage and Commitment.  He does not possess the discipline required for continued service in the Marine Corps.”

000229:	Commanding Officer, School of Infantry forwarded to the Commanding General concurring with recommendation for Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments: “ Private B_(Applicant) tested positive for marijuana following recruit leave.  He entered the Marine Corps with a waiver for marijuana use (x1).  He states he cannot abstain from drug-use in the future.

000314:	SJA review determined the case sufficient in law and fact.

000321:	GCMCA, Marine Corps Base, Camp Lejeune, NC, 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 20000324 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 states that he made a mistake and would like the opportunity to correct it.    The Board found 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 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. 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.  The NDRB advises the Applicant that regulations limit the Board’s review 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 is not warranted
 
The Applicant believes his “RE” code is wrong and he desires to re-enlist and serve his country. 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 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.

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.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 31 August 2001.

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 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