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NAVY | DRB | 2004 Marine | MD04-00661
Original file (MD04-00661.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00661

Applicant’s Request
The application for discharge review was received on 20040311. 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 personal appearance hearing discharge review before the Board in the Washington National Capital Region or a personal appearance hearing discharge review before a traveling panel. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearing are held in the Washington DC area. The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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:

“ When I enlisted I was 17 I had a child on the way and was planning to get married before training. My mindset was not in the right place and made a bad decision based on other people’s influences. I was a child and didn’t understand the repercussions that were to follow my stupid mistakes. All I want to do is serve my country and become the Marine I should have been. I would like to request that the board change my discharge so that I could re-enlist. I would take any pay amount and sign for any length of service if the board, Country, and Marine Corps would grant me a second chance. Thank You ”.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None submitted

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                940929 - 950710  COG

 Period of Service Under Review :
Date of Enlistment: 950711               Date of Discharge: 970423

 Length of Service (years, months, days):

         Active: 01 09 12
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 52

 Highest Rank: LCpl                         MOS: 0131

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (5)                       Conduct: 3.1 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, REB

 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 :

940926   Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver granted.
940926:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

961230:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 112a.
         Specification: Wrongful use of a controlled substance
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Confinement for 30 days, reduced to E-1.
          CA action 961230: Sentence approved and ordered executed.       

970127:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

970128:  Medical evaluation for drug abuse found the Applicant to be a drug abuser.
         Recommendation: Process for separation per MCO P5300.12. Applicant counseled on VA changes.

970205:  Applicant provided with Veterans Administration Statement of Understanding for drug and alcohol treatment in conjunction with discharge.

970211:  NJP for violation of UCMJ, Article 112a: Did wrongfully use or possess a controlled substance.
 Awarded: Forfeiture of $450.00 pay per month for 2 months, (total forfeiture of $900.00) 60 days extra duties. Not appealed.
970221:  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.

970313:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse which was confirmed by urinalysis and his admission. The factual basis for this recommendation was your wrongful use of marijuana, a controlled substance on or about 961204, which resulted in Summary Court-Martial on 961230.

970411:  SJA review determined the case sufficient in law and fact.

970415:  GCMCA, Commanding General, I Marine Expeditionary 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 19970423 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 contends that his problems in the Marine Corps can be attributed to his age and family situation. While he may feel that these factors were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The Applicant’s service was marred by a nonjudicial punishment proceeding and a summary court-martial for two separate violations of Articles 112a of the UCMJ. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. 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.

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 following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any documentation for the Board to consider. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .
D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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