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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00674

Applicant’s Request

The application for discharge review was received on 20060314.  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 20070201.  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 - ISSUES AND DOCUMENTATION

Decisional Issues

Equity:  Post-service equity

Documentation

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

Applicant’s DD Form 214 (Service 2)
Letter to Applicant from D_ A. B_, Director, White House Liaison Office, Department of the Navy, Office of the Secretary, dated December 23, 2005
Letter to Applicant from M_ A. M_, Special Assistant to the President and Director of Presidential Correspondence, The White House, dated October 31, 2005
Letter to Mrs. W_, Legal Department, Camp Geiger, NC from Applicant’s parents, dated June 6, 2003
Letter to Captain C_, Delta Company Commander, ITB-SOL NCSCL, NC from Applicant’s parents, dated February 13, 2003
Character Reference ltr to BGen J. J. M_ from P_ M_, dated November 29, 2004
Character Reference ltr from J_ and J_ H_, dated August 31, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20020926 - 20021006	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20021007		Date of Discharge:  20030506

Length of Service (years, months, days):

Active:    00  07  00
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  6 days
	Confinement:		  2 days

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  42

Highest Rank:  Pvt				MOS:  9900 (Basic Marine)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8*		Conduct:  3.8*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Expert Rifle Badge, National Defense Service Medal

*Proficiency/Conduct marks extracted from Commanding Officer’s letter.

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:

020924:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

021002:	Applicant receives waiver for pre-service drug use.

030127:	NJP for violation of UCMJ, Article 112a:  Did, at an undisclosed location, on or between 030103-030111 wrongfully use cocaine, a controlled substance.
	Award:  Forfeiture of $575.00 per month for 2 months, restriction and extra duty for 45 days.  Not appealed.

030127:	Counseling:  Advised of deficiencies in performance and conduct (illegal usage of a controlled substance (cocaine) as identified in NAVDRUGLAB msg Jacksonville, FL R221117Z Jan 03).  Necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

030212:	Applicant notified of intended recommendation for discharge as other than honorable by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your use of cocaine as identified by positive urinalysis test results, a violation of Article 112a.  Applicant informed the least favorable character of service possible was as other than honorable.

030212:	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.

Not dated:	NJP for violation of UCMJ, Article 86:  NFI.
	Award:  Forfeiture of $575.00 per month for 2 months, restriction for 60 days.  No indication of appeal in the record.
	[Extracted from Commanding Officer’s Recommendation for Separation.]

030216:	Applicant to unauthorized absence.

030218:	Commanding Officer, Headquarters and Support Battalion, School of Infantry, recommended to Commanding General, Marine Corps Base, Camp Lejeune, that Applicant be discharged by reason of misconduct due to drug abuse with a characterization of service as under other than honorable conditions.

030321:	Applicant from unauthorized absence.

030222:	Applicant found fit for confinement.

030506:	DD 214:  Applicant discharged this date.

Service Record Book contains a partial Administrative Discharge package.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030506 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).  In the absence of a complete discharge package, the Board presumed regularity in the conduct of governmental affairs (D).

There is credible evidence in the record that the Applicant used illegal drugs, a violation of Article 112a of the UCMJ.  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 NDRB advises the Applicant that certain serious offenses warrant separation from the Marine Corps in order to maintain proper order and discipline. A violation of Article 112a is considered a serious offense and a punitive discharge is authorized if adjudged at a special or general court-martial.  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 Applicant’s discharge characterization accurately reflects his service to this country.  Relief denied.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces; therefore, the NDRB is not authorized to change a reenlistment code, nor grant an upgrade for the sole purpose of enhancing employment opportunities.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  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. 

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question.  No impropriety or inequity occurred during the Applicant’s enlistment.  Additionally, 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 service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief based on post-service conduct.  As of this time, the Applicant has not provided sufficient evidence of post-service accomplishments to consider mitigating the misconduct that resulted in the characterization of discharge.  Relief not warranted.

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.  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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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