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USMC | DRB | 2003_Marine | MD03-01060
Original file (MD03-01060.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD03-01060

Applicant’s Request
The application for discharge review was received on 20030428. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable. The Applicant requests a personal appearance discharge review before a traveling panel closed to San Antonio, TX. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Board first conducts a documentary record review prior to any personal appearance hearing, and the Applicant was also advised that the Board does not travel; all hearings are held in the Washington, D.C. area.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040408. 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/MISCONDUCT, authority: MARCORSEPMAN 6210.5.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. Veteran was told that his discharge status would change to Honorable within 6 months of his discharge, and with this reentry code of RE-4B, he would be eligible for reentry into any branch of service within 2 years (except Marine Corp or Navy). This has not occurred as of 5/19/2003.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
 Bexar County VSO Ltr dated 030520

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                000508 - 000530  COG

 Period of Service Under Review :
Date of Enlistment: 000531               Date of Discharge: 001027

 Length of Service (years, months, days):

         Active: 00 04 27
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 2.7 (3)                       Conduct: 2.7 (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 :

000424:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver was granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

000925:  NAVDRUGLAB SAN DIEGO, reported Applicant’s urine sample, received 000915, tested positive for cocaine.

000929:  NJP for violation of UCMJ, Article 112a (1 spec):
 Specification 1: Wrongful use of a controlled substance
Awarded forfeiture of $502.00 per month for 2 months, restriction and extra duties for 45 days. Not appealed.
001005:  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 illicit drugs.
001005:  Applicant advised of 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.

001006:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by wrongful use of illicit drugs. Commanding officer’s comments: “His willful use of illicit drugs is a direct violation of the Marine Corps’ policy on drug abuse and constitutes a flaunting of authority and that policy.”

001019:  SJA review determined the case sufficient in law and fact.

001023:  GCMCA CG, MCB Camp Pendleton 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 20001027 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 Board found 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. 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. Relief denied.

The Applicant states that he was told that after six months he could have his discharge upgraded. There is no law or regulation that authorizes a discharge to be automatically upgraded after six months. Relief denied.

A former service member has 15 years, from the date of discharge, to petition the board for consideration of an upgrade. The Board does not automatically upgrade a discharge after six months. 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. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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. Representation at a personal appearance hearing is 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 31 Jan 97 until Present.

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 “ 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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