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NAVY | DRB | 2004 Marine | MD04-00129
Original file (MD04-00129.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-00129

Applicant’s Request
The application for discharge review was received on 20031023. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628. 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-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

No issues were submitted by the Applicant.


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Transmittal of and/or entitlements to Awards, dtd 06-May-03
Written Statement to the Board, undated
Applicant’s DD Form 214 (Completion of required active service (USMCR) IADT)
Applicant’s DD Form 214 (Completion of required active service (Involuntary Recall)
Reserve Retirement Credit Report (NAVMC 798)
Annual Retirement Credit Report (Computer print out)
Chronological Record (NAVMC 118(3))
Discharge Notice, dtd 22 Feb 93
Administrative Discharge, Third Endorsement, dtd 04 Feb 1993
Combat History – Expeditions – Awards Record (NAVMC 118(9))
State of Alabama, Department of Human Resources, Background Review,
dtd August 22, 2003
Letter to the Editor, The Birmingham News, Friday, January 31, 2003
Bachelor of Science degree in Social and Behavioral Science
from The University of Alabama at Birmingham

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              901125 - 910604  HON
                                             900412 - 900822  HON
         Inactive: USMCR (J)               891103 - 930222  COG

 Period of Service Under Review :
Date of Enlistment: 891103               Date of Discharge: 930222

 Length of Service (years, months, days):

 Active: 00 10 21 (completion of Active Service (USMCR) IADT &
(Involuntary Recall))
          Inactive: 02 04 29

 Age at Entry: 19                          Years Contracted: 8

Education Level: 12                        AFQT: 48

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

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

Military Decorations: CAR

 Unit/Campaign/Service Awards: NDSM, SSDR, SASM (w/ 3 stars), MUC, KLM

 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 :

891020:  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.
900821:  Counseled for deficiencies in performance and conduct. [Inability to complete training.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920327:  NAVDRUGLAB [Jacksonville FL.] reported Applicant’s urine sample, received 930316, tested positive for [cocaine].
920412:  NJP for violation of UCMJ, Article 112a: did possess traces of cocaine in urine.
 Awd red to PFC/-2 and forf of $62.00 per month for 1 month. Not appealed.
920606:  Counseled for deficiencies in performance and conduct. [Unsatisfactory Drill Participation and Drug Abuse.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
921207:  Applicant notified via certified mail, return receipt requested, of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by “a positive sample for Cocaine as identified by the Naval Drug Screening Laboratory, Jacksonville, FL message 271500Z Mar 92.
921209   Applicant declared an unsatisfactory participant.

921230:  Letter of intent to administratively separate under other than honorable conditions for the failure to participate in reserve training and drug abuse was sent via certified mail, return receipt requested. Applicant receipted for letter by return signature but failed to acknowledge the contents. [The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303)]

921230:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive his rights. [The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303)]

930110:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was “a positive urine sample during the unit urinalysis sweep that proved positive for Cocaine.”


930204:  GCMCA [Commanding General, Marine Reserve 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 19930222 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).

 The Applicant did not introduce any decisional issues for the Board’s consideration. A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a member of the Marine Corps. The Applicant’s service was marred by award of nonjudicial punishment (NJP) for illegal drug use. Additionally, the applicant was declared an unsatisfactory participant in the Marine Corps Reserves by virtue of missing 25 drills and failing to make them up. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for a honorable characterization of service. An upgrade to honorable would be inappropriate. Relief denied.

Concerning a change in reenlistment code mentioned in the Applicant’s written statement to the Board, 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 cannot be granted by this Board.

The following is provided for the edification of the Applicant. There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. However, the NDRB is authorized to consider post-service factors in the recharacteriza-tion of a discharge. 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 may be considered. Verifiable proof of 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 credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.
 
The Applicant is reminded he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of 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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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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