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USMC | DRB | 2002_Marine | MD02-00124
Original file (MD02-00124.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-00124

Applicant’s Request
The application for discharge review, received 011017, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020701. 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, as submitted

1. My discharge was inequitable because it was based on an isolated incident in 12 months and 23 days of service with no other adverse action.

          A: The reason for my seperation was a failed urine test. I tested positive for marijuana, which I accepted full responsibility for my actions resulting in the test results.
B: While attending a party, I compromised my own code of ethics, as well as those of the Marine Corps, by smoking marijuana.
2. Since my discharge from the Marine Corps I have been gainfully employed and I have attended community college in Houston, TX and Fort Worth, TX. I have not used marijuana since said party.

3. I submit this application to the Board so that I might reenter the Armed Services. If the Board approves my Discharge Upgrade, it would allow me to pursue my goals of serving my country and acheiving some personal dreams as well.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                951012 - 951210  COG

 Period of Service Under Review :
Date of Enlistment: 951211               Date of Discharge: 970103

 Length of Service (years, months, days):

         Active: 01 00 23
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 92

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (3)                       Conduct: 4.4 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

951011:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
960531:  NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 960524, tested positive for THC.

 960613:  NJP for violation of UCMJ, Article 112A:
 Specification: Wrongfully used marijuana on 21May96.
Awarded restriction and extra duties for 45 days, reduction to Pvt. Not appealed.
960812:  Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.

960930:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
960930:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was your nonjudicial punishment evidencing your conviction.

961003:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
961126:  Applicant submitted unconditional waiver of administrative discharge board.

 961205:  SJA review determined the case sufficient in law and fact.
961205:  GCMCA [Commander, 1 st Marine Division (Rein)] 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 970103 under other than honorable conditions for misconduct due to drug abuse (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 (C and D).

Issue 1. The applicant states, his discharge was based on one isolated incident in over 12 months of service with no other infractions. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The discharge was proper and equitable. Relief denied.

Issue 2. The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice 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, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. Relief denied.

Issue 3. Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. 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.

 The applicant 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.

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 30 Jan 97.

B. 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.

C. 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.

D. 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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