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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00432

Applicant’s Request

The application for discharge review was received on 20060130.  The Applicant requests the Narrative Reason for Separation be changed to “Entry Level Performance/Conduct.”  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061206.  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 reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS” and Block 29, Dates of Time Lost During This Period, should read: “20011127 – 20011128 (1), 20020223- 20020310 (15)”. The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and on the attached document/letter:

“I respectfully request that my narrative reason for discharge be amended to Entry Level Performance and Conduct and that my Reentry Code be changed to read RE3.  I realize now that I was immature at the time of discharge and now wish to pursue a career in the United States Military.  Now that I have matured, I believe that I can contribute positively to the defense of the United States of America and her people.”

“To Whom it May Concern:

My name is B_ T.  G_(Applicant); I was discharged from the United States Marine Corps in 20020401.  I am writing this letter to tell why I am ready to re-enlist.
As all of my references say I am truly a changed man, and I do consider my self a man now.  When I joined the USMC I knew nothing about the military and what it meant to be a part of the service.  I joined the Marine Corps because I was injured playing baseball my senior year in high school I didn’t know what to do so I joined what I heard was the hardest service.  I sincerely apologize for wasting your time.
I believe now that I truly know and understand what it means to be apart of the strongest military force in the world.  I want to be a part of the best.  And I want to have an influence on every one around me; I can handle that responsibility now.  I am not afraid of anything and when I put my mind and my heart towards something I can do it as well if not better then anyone else, and my mind and heart are fully committed to defending our Country.  I have been training mentally and physically and will continue to train until I am back were I belong.
In closing I also have two daughters I will fight for to insure their freedom.  I am extremely motivated and I can not wait to become the best person I know I can be.  I am ready for my second chance and I ask with all do respect that you give it to me.

Sincerely
B_ T.  G_”

Documentation

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

Applicant’s DD Form 214 (State Director of Veterans Affairs - 6)
Character Reference ltr from K_ H_, undated
Character Reference ltr from D_ and M_ S_, dtd January 19, 2006
Character Reference ltr from S_ G_, Retired E8, USAF, dtd January 19, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20010111 - 20010708	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010709		Date of Discharge:  20020401

Length of Service (years, months, days):

Active:    00  08  23
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  1 day
	Confinement:		  15 days

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  59

Highest Rank:  Pvt				MOS:  9900

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (1)				Conduct:  4.2 (1)

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

010111:	Pre-service waiver granted (moral).

020109:	NJP for violation of UCMJ, Article 86: (AWOL) UA fr BMP, STC, Spt Bn, RTR, MCRD San Diego, CA dur the prd 0200, 011127 through 0800, 011228.
Violation of UCMJ, Article 92: Failure to obey an order or regulation.
Specification 1: On or about 011024, SNM, while under the legal age to consume alcohol, did consume alcohol.
Specification 2: On or about 011229, SNM disobeyed an order given by Capt S_, who was known to SNM to be a superior Commissioned Officer, by leaving his quarters while on Liberty restriction.
Violation of UCMJ, Article 134: False or unauthorized pass offenses.  On or about 011024, SNM presented a false identification card to civ. Authorities.
	Award:  Forfeiture of $521.00 per month for 2 months, restriction for 45 days.  Not appealed.

020115:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 020107, tested positive for THC.

020204:	SACC, MCRD consultation report by A. T_, MC, USNR:   18 year old single male, Pvt USMC, with 7 months of continuous service was referred by command for positive urinalysis for THC.  Preservice waiver.  Preservice use, THC.
	Impression:  Substance abuse.
	Recommendations: OP treatment/education.  DAW class.

020208:	Director, Substance Abuse Counseling Center notified Commanding Officer, Support Battalion, of the Applicant’s evaluation by a Drug and Alcohol Counselor and diagnosis by a Medical Officer.  Applicant did meet DSM-IV criteria for drug abuse.  Recommend Applicant attend Marine Alcohol Awareness Course (MAAC) scheduled for 0800 on 020213 and be enrolled in the outpatient treatment program contingent upon his legal status.

020222:	Summary Court-Martial.
	Charge: violation of the UCMJ, Article 112a: (Wrongful use of a controlled substance).
	Specification: On or about 020104, SNM(Applicant) did at an unknown place, wrongfully use (THC).  Plea:  Guilty.  Findings:  Guilty
	Charge II: violation of the UCMJ, Article 134: (Disobeying a lawful order or regulation).
	Specification: Through out the periods of 20 January and 30 January, SNM did fail to report to his appointed place of duty, which violated the terms of his restrictions.  Plea:  Guilty.  Findings:  Guilty.
	Sentence: Forfeiture of $681.00, confinement for 20 days.
	CA action 020222:  Sentence executed, forwarded to SJA.

020222:	Applicant signed Veterans Administration Statement of Understanding.  Applicant understands that the Veterans Administration Drug and Alcohol Rehabilitation Program is available for eligible Marines that need and desire treatment.  Applicant understands that he has been evaluated by a Medical Officer and diagnosed as being drug or alcohol dependent.  Applicant does not desire to be enrolled in the Veterans Administration in conjunction with discharge.  Applicant understands that he does not meet the diagnostic criteria for drug/alcohol abuse or dependency and will not receive treatment in conjunction with discharge. Applicant advised of the address of the Veterans Administration Hospital/Facility which can provide appropriate treatment nearest my home of record.

020222:	Applicant notified of intended recommendation for discharge under other 
than honorable conditions by reason of misconduct, due to illegal use of drugs.  The factual basis for this recommendation was the Applicant’s positive urinalysis for marijuana.  Applicant informed the least favorable character of service possible was as under other than honorable conditions

020222:	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.

020222:	Applicant’s letter to Commanding General, MCRD/WRR San Diego.  Subject: WAIVER OF ADMINISTRATIVE DISCHARGE.  Applicant, having discussed this waiver with his counsel, waives his right to an administrative discharge board and requests a general discharge.  Applicant understands that the separation authority may disapprove his request for a general discharge and award him an other than honorable characterization of service.

020223:	Medical Division, NAVCONBRIG MIRAMAR, San Diego, CA confinement evaluation.

020225:	Counseling:  Advised of deficiencies in performance and conduct (Conviction at a summary court martial held on 020222, at Spt Bn, RTR, MCRD San Diego, CA), and advised being processed for administrative discharge action.  Applicant chose not to make a statement.

020225:	Applicant notified of intended recommendation for discharge under other 
than honorable conditions by reason of misconduct, due to illegal use of drugs.  The factual basis for this recommendation was paragraph 6210.5 of the reference which states that all Marines regardless of pay grade, confirmed as having used or possessed illegal drugs will be administrative separated by reason of misconduct.  Applicant informed the least favorable character of service possible was as under other than honorable conditions.  

UNDATED:	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.

020225:	Commanding Officer, Support Battalion, Recruit Training Regiment Marine Corps Recruit Depot/Western Recruiting Region, San Diego, CA recommended to Commanding General, Marine Corps Recruit Depot/Western Recruiting Region via Commanding Officer, Recruit Training Regiment and Staff Judge Advocate, Marine Corps Recruit Depot, San Diego, CA, the Applicant’s discharge under other than honorable conditions by reason of pattern of misconduct and misconduct due to illegal use of drugs.  The factual basis for this recommendation is per the information documented in enclosures (2), (3), and (8) and the subsequent nonjudicial punishment conducted on 020109 as found in enclosure (5).  Furthermore, Private G_(Applicant) has shown a severe lack of maturity and professionalism with his choice to use illegal drugs.  This conduct is contrary to everything expected from Marines and it is apparent that he no longer deserves to be one.  

020228:	Commanding Officer, Support Battalion, Recruit Training Regiment Marine Corps Recruit Depot/Western Recruiting Region, San Diego, CA recommended Applicant’s discharge under other than honorable conditions by reason of misconduct, due to drug abuse.  Comments:  “In accordance with MCO P1900, paragraph 6210.5a, which states that Commanders shall process Marines for administrative separation, for illegal use of drugs, I recommend administrative separation.  Private G_(Applicant) was found to be in violation of article 112a based on a positive test result taken from an involuntary command urinalisis.  Furthermore SNM admitted to violation of article 112a during summary courts martial proceedings.  This type of behavior is not condoned or expected from Marines and it is apparent that he no longer deserves to be one.”

020308:	Commanding Officer, Recruit Training Regiment, Marine Corps Recruit Depot, San Diego, CA forwarded Commanding Officer, SuptBn letter of 020225, concurring with the recommendation of administrative discharge with an other than honorable characterization of service.

020310:	Applicant released from confinement, NAVCONBRIG MIRAMAR.

020322:	SJA review determined the case sufficient in law and fact.

020327:	GCMCA, Commanding General, MCRD/WRR San Diego, CA, approved 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 20020401 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 (B and C).  

The following is provided for the Applicant’s edification.  On 20020327, the GCMCA, Commanding General, MCRD/WRR San Diego, CA approved the Applicant’s discharge by reason of misconduct due to drug abuse with a characterization of service of under other than honorable conditions.  The characterization of service listed in Block 24 of the Applicant’s DD FORM 214, “UNCHARACTERIZED”, is incorrect and should read “UNDER OTHER THAN HONORABLE CONDITIONS”.  A subsequent DD FORM 215 issued on 20020402 is also incorrect by stating that Block 24 should read “GENERAL UNDER OTHER THAN HONORABLE CONDITIONS.”  As stated on the front page of this decisional document, Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS.”  The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.  

The Applicant requests that his narrative reason for discharge be changed to “Entry Level Performance and Conduct”.  According to reference (a), paragraph 6205, a member may be separated while in an entry level status if the member is unqualified for further service by reason of entry level performance.  Entry level status is defined as the first 180 days of continuous active military service.  In addition, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service.  For the purposes of characterization of service or description of separation, the member’s status is determined by the date of notification as to the initiation of the separation proceedings.  The Applicant was notified of the intended recommendation for discharge on 20020222, which was the Applicant’s 228th day of active duty.  Therefore, the Applicant was not in an entry level status on the date of notification and was not eligible for an Entry Level Separation (Uncharacterized) characterization of service and could not be administratively discharged by reason of Entry Level Performance and Conduct.

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.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Relief denied

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’s service was marred by a nonjudicial punishment proceeding for violations of Articles 86, 92 and 134 of the UCMJ.  In addition, the Applicant pled guilty to violations of UCMJ Article 112a (wrongful use, possession of controlled substances) and Article 134 (disobeying a lawful order or regulation) at a summary court-martial.  Violations of UCMJ Articles 92, 112a, and 134 are considered serious offenses for which a punitive discharge is authorized if adjudged by a special or general court-martial.  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.

The Applicant contends that his problems in the Marine Corps can be attributed to his immaturity.  While he may feel that this 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.

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.  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.  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 order, regulation), 112a (Wrongful use, possession, etc., of controlled substances), and 134 (False or unauthorized pass offenses).

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 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