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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00872

Applicant’s Request

The application for discharge review was received on 20060615.  The Applicant requests an unspecified change to the Separation Code received at discharge, and 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 20070329.  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 and reason for 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 conduct mitigates characterization

Documentation

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

Letter from Applicant, dated June 5, 2006
Applicant’s criminal record check from Ocala Police Department, dated June 1, 2006
Letter of Recommendation from R_ A_, dated May 30, 2006
Character Reference ltr from A_ G_, dated November 28, 2005
Character Reference ltr from S_ G_, dated May 30, 2006
Applicant’s DD Form 214 (Member 4) (2)
Applicant’s police record check from Marion County Sheriff’s Office, dated November 4, 2003
Applicant’s police record check from Ocala Police Department, dated November 4, 2003
Two pages from Applicant’s MEPS record

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20031106 - 20040607	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20040608		Date of Discharge:  20050301

Length of Service (years, months, days):

Active:    00  08  24  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  24 days

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  32

Highest Rank:  PFC				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (3)				Conduct:  3.5 (3)

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

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:

031104:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

041119:	Counseling:  Advised of deficiencies in performance and conduct (Violation of Article 92 failure to follow rules and regulations, specifically, throwing away live ammunition prior to engaging in a night live fire event.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

050112:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 050105, tested positive for cocaine.

050114:	Summary Court-Martial.
	Charge: violation of the UCMJ, Article 112a:
	Specification: At 1st Bn, 6th Mar, on or about 050203, while on active duty, wrongfully used cocaine, a controlled substance.
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $823.00 pay per month for 1 month, confinement for 30 days, reduction to E-1.
	CA action 050114:  Sentence approved and ordered.

050114:	Applicant to confinement at Marine Corps Base Brig.

050206:	Applicant from confinement (24 days).

050207:	Counseling:  Advised of deficiencies in performance and conduct (Concerning my illegal drug involvement.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

050207:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of drug abuse.  The factual basis for this recommendation was incident of illegal drug use as identified in NAVDRUGLAB Jacksonville FL msg R 121122z January 2005.  Applicant informed the least favorable character of service possible was as under other than honorable conditions.

050207:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

050207:	Commanding Officer, Headquarters Company, 6th Marines, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

050209:	Applicant counseled regarding, but refused screening/treatment for substance abuse.

050223:	SJA review determined the case sufficient in law and fact.

050225:	GCMCA, Commanding General, 2d Marine Division, II Marine Expeditionary Force, 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 20050301 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 Board construed the Applicant’s request for a separation code change to be a request to change the narrative reason for separation.  The record clearly demonstrates, and the Applicant does not deny, that the Applicant used cocaine less than 9 months after entering the active duty.  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.  The record 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.  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.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  Relief denied.

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.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.  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, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  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 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.

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