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USMC | DRB | 2001_Marine | MD01-00366
Original file (MD01-00366.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD01-00366

Applicant’s Request
The application for discharge review, received 010202, requested that the characterization of service on the discharge be changed to honorable. The applicant requested 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 010822. 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-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues
1.       I have made a complete turnaround of my life since leaving the Marine Corps, and have submitted additional issues attached to plea my case.
2. I am also very interested in a re-enlistment code.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Odessa College Transcript
Wayland Baptist University Transcripts
 Copy of DD Form 214
 Character Reference letter from C_ B_, Pastor, Discovery Church dtd Jan 24, 2001
Applicant's letter to the Board dtd Jan 28, 2001 (3 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                920203 - 920915  COG
Period of Service Under Review :
Date of Enlistment: 920916               Date of Discharge: 930729

 Length of Service (years, months, days):
         Active: 00 10 14
          Inactive: None
Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 37
Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.3 (3)              Conduct: 3.9 (3)

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.
Chronological Listing of Significant Service Events :

920202:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
930512:  NAVDRUGLAB San Diego, reported applicant’s urine sample, received 03MAY93, tested positive for cocaine.
930604:  NJP for violation of UCMJ, Article 112a: wrongfully used cocaine, a controlled substance, on board MCB CamPen or in the vicinity thereof on or about 930426.
 Awarded forfeiture of $400 per month for 2 months, restriction and
extra duties for 45 days and reduction to pay grade E-1. Not appealed.
930609:  Medical Eval: 21 year old Caucasian single male, command referral for positive urinalysis (cocaine). Pt has pre-service waiver (marijuana use).
          Assessment: Pt disclosure suggests alcohol abuse (light tolerance, extreme intoxication when drug use occurred). Drug use appears incidental; indirect result of alcohol use (loss of inhibition).
          Plan: Initiate admin separation (drug abuse) per current directive. Level II treatment, and follow-up as necessary.
930618:  Unauthorized absence since 0700, 930618.

 930622:  Surrendered at 0300, 930622.
930621:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by of NJP for illegal use of drugs.
930625:  Applicant advised of his rights and having consulted 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.
930629:  Applicant acknowledged that he would not receive treatment in conjunction with discharge, but advised of the VA Hospital/Facility which can provide appropriate treatment nearest his home of record.

930629:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was due 1 NJP which evidences the illegal use of drugs.

930709:  SJA review determined the case sufficient in law and fact.
930712:  GCMCA [CG, 1 ST FSSG] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

 930715:  NJP for violation of UCMJ, Article 86: unauthorized absence 0700, 930618 to 0300, 920622.
 Awarded forfeiture of $450.00 per month for 1 month, restriction and
extra duties for 45 days. Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930729 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).
Issue 1. The NDRB is authorized to consider outstanding post-service conduct, 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. However, there is no law or regulation that provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must be found to have existed during the period of enlistment in question. No such error or injustice is evident in the applicant’s service record. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. 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. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities in order for consideration for relief based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted.

He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required.

Issue 2. The NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other branch of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the naval service is promulgated by the Commander, Navy Personnel, Pers 814, 5720 Integrity Drive, Millington, TN 38055, and the Commandant, United States Marine Corps, Code MMPE-5, Washington, DC 20380-3001. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore denied.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 112a, wrongful use of a 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 “ afls10.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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