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NAVY | DRB | 2004 Marine | MD04-00322
Original file (MD04-00322.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD04-00322

Applicant’s Request
The application for discharge review was received on 20031210. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions. 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 20040812. 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:

 Issue 1: “To whom it may concern:
 I G_ J. B_ (Applicant) would like to enlist in the U. S. Army and can not do so with the reentry code of RE-4B. I would like to upgrade to a code which will enable me to enlist in the army and hopfuly go overseas to help my country in the fight against Terrorism as a U. S. Army machine gunner. The same M.O.S. as I had in the Marine Corps. (Applicants signature) 2003/11/20 .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR (J)               981121 - 990110  COG
Period of Service Under Review :
Date of Enlistment: 990111               Date of Discharge: 010516

 Length of Service (years, months, days):
         Active: 02 03 13 (Lost time included.)
         Inactive: None
Age at Entry: 20                          Years Contracted: 4

Education Level: 10 (GED)                          AFQT: 40
Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 0.0 (0)*                      Conduct: 0.0 (0)
Military Decorations: None

 Unit/Campaign/Service Awards: SSDR
Days of Unauthorized Absence: None

          *Unable to determine because record is incomplete.
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 :

980731:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

991022:  NJP for violation of UCMJ, Article 111: Driving under the influence.
 Awd forf of $251.00 per month for 1 month, 14 days restriction and extra duties. Not appealed.
000502:  NJP for violation of UCMJ, Article 123a: Uttering worthless checks without sufficient funds.
          Violation of UCMJ, Article 134: Obtaining services under false pretenses.
Awd red to Pvt, forf of $502.00 per month for 2 months, and 60 days restriction. Not appealed.
001109:  NAVDRUGLAB [San Diego, CA] reported Applicant’s urine sample, received 001106, tested positive for [THC].
010216:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 112a.
         Specification: wrongful use of marijuana.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $695.00 per month for 1 month, and 28 days confinement.
         CA action 010216: Sentence approved and ordered executed.
        
010222:  Applicant refused medical officer’s evaluation.
010307:  SACO/DACO eval/comment: Applicant refused to be evaluated.
010330:  Counseled regarding deficiencies, specifically, the illegal use of marijuana. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.
010403:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the Applicant’s illegal drug abuse.
010403:  Applicant advised of 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.
010403:  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 Applicant’s illegal drug abuse.
010504:  SJA review determined the case sufficient in law and fact.

 010504:  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 20010516 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. Concerning the Applicant’s request for 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 during the enlistment process through a recruiter.

A service characterization 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 U. S. Marine Corps. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on two separate occasions for driving under the influence, uttering worthless checks and obtaining services under false pretenses. Additionally, he was found guilty of illegal drug use at a Summary Court-Martial. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected his disobedience of the orders and directives which regulate good order and discipline in the naval service, and fell far short of that required for a service characterization of honorable. An upgrade to honorable or general (under honorable conditions) would be inappropriate. Relief denied.

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 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. The Applicant provided no documentation for the Board to consider.
 
The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her 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 31 August 2001.

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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