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USMC | DRB | 2000_Marine | MD00-00316
Original file (MD00-00316.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD00-00316

Applicant’s Request
The application for discharge review, received 000107, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to separation of active duty. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000919. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I was heavily sedated on Prilocaine, Tylonal 3, and codine during urinalysis due to operation on right foot. Staff NCO's and Officers knew of my conditions. 25 operations.

2. I had 4.5 - 4.5 Pro's Cons throughout my career, I also picked up NCO/E-4 in less than 2 years. I would not wreck my military career over drugs. Never had any isolated incident.

3. I had brain seizures in the past. Any consumption of cocaine, or any high dose of drugs would place me in occoma. If I had levels specified I would have went into an epileptic seizure causing major brain damage or even death.

4. NIS/CID stated to me if I just confess to the crimes I would stay in the united states marine corp. They have a tape stating that in the CID building in Kaneohe Bay Hawaii/Pearl Harbor interigations. They harassed & belidled me into telling a lie to shut them up. Platoon commander knew and reported it to BLT CO 1/12. He never gave a response.

5. I would please like a victor code of RE1A instead of a V4B so I can go back into active statis. I do not want any benefits, I just would like to become a serviceman again.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from Pvt J____ R. C____
Letter from Battalion Surgeon
Letter from Applicant (7pgs)


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                950728 - 960219  COG

 Period of Service Under Review :
Date of Enlistment: 960220               Date of Discharge: 980626

 Length of Service (years, months, days):

         Active: 02 04 07
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 41

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (8)                       Conduct: 4.2 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Sharpshooter Badge, NDSM, Meritorious Mast, SSDR

Days of Unauthorized Absence: 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 :

950726:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
980303:  SACC evaluation indicates drug abuse IAW reference (a) MCO P5300.12A and reference (b) MCO P1900.16E. No diagnosis IAW DSM IV criteria.

980423:  NJP for violation of UCMJ, Article 112a: Wrongfully use cocaine sometime during the months of Dec 97 and Jan 98, to wit: NAVDRUGLAB msg dtg 262118Z Jan 98. .
 Awarded forfeiture of $568.00 per month for 2 months, restriction and
extra duties for 45 days, reduction to E-3. Not appealed.
980427:  Counseled for deficiencies in performance and conduct. [Misconduct due to your violation of Article 112a, UCMJ: specifically for the wrongful use of cocaine. Resulting in Bn NJP held on 980423] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980506:  Applicant acknowledged VA Statement of Understanding.

980530:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by wrongful use of cocaine.

980601:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980601:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was the respondent's wrongful use of cocaine.

980611:  SJA review determined the case sufficient in law and fact.

980615:  GCMCA [Commander, Marine Corps Base Hawaii] 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 980626 under other than honorable conditions for misconduct due to drug abuse (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

In response to the applicant’s issues 1 through 4, the Board did not find, nor did the applicant present any evidence to show that his rights were prejudiced thereby. Nor was the Board able to find evidence to prove that the applicant did not use cocaine. The Board will not grant relief based on these issues.

 In response to the applicant’s issue 5, the Board has no authority to change re-enlistment codes or make recommendations to permit re-entry into the Naval Service or any other of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to re-enlistment. A request for waiver is normally done only during the processing of a formal application for enlistment. No relief will be granted based on this issue.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 to Present.

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 [ e.g., Article 112a, wrongful use of controlled substance].
C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “ afls14.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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