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NAVY | DRB | 2004 Marine | MD04-00679
Original file (MD04-00679.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00679

Applicant’s Request
The application for discharge review was received on 20040315. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region . 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) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041008. 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. “I wish to have my discharge upgraded in order to reenlist in the United States Marine Corps.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                970731 - 971111  COG

 Period of Service Under Review :
Date of Enlistment: 971112               Date of Discharge: 001020

 Length of Service (years, months, days):

         Active: 02 11 09
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rank: LCpl                         MOS : 0341/8611

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.8 (9)                       Conduct: 3.6 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, RSB

 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 :

970731:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
990312:  Applicant informed eligible but not recommended for promotion to Corporal for the April, May, June promotion period due to lack of initiative and a poor attitude.

990629:  Applicant informed eligible but not recommended for promotion to Corporal for the July, August, September promotion period because of recent misconduct.

 990714:  NJP for violation of UCMJ, Article 81:
 Specification: Conspire with LCpl K_ to commit and offense under the Uniform Code of Military Justice on 990709 to 990710, to wit: under age drinking and in order to effect the object of the conspiracy the LCpl did aid LCpl K_ and assist him to wrongfully purchase and consume alcohol while underage.
Awarded forfeiture of $100.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
990715:  Applicant informed eligible but not recommended for promotion to Corporal due to NJP.

990921:  Applicant informed eligible but not recommended for promotion to Corporal due to recent NJP on 990712.

991129:  Counseled for deficiencies in performance and conduct: [Concerning his failure to pass a HMMWV course conducted by the Bn MTO.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991217:  Applicant informed eligible but not recommended for promotion to Corporal for the January, February, March 2000 promotion period because of not passing the company promotion screening board.

000106:  Counseled for deficiencies in performance and conduct. [Loss of an Armed Forces Military Identification Card.]
000616:  NJP for violation of UCMJ, Article 92:
 Specification 1: Failure to obey lawful order on 000608, issued by LtCol B_, to wit: BnO 1700.6d para 4(5) dated 000821 by drinking and driving.
Violation of UCMJ, Article 111:
Specification: Physically controlled a vehicle on 000607, to wit: a passenger car, while drunk.
Violation of UCMJ, Article 134:
Specification: Drunk and disorderly on 000607, which resulted in a fight with unidentified individuals.
Awarded forfeiture of $563.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-2. Forfeiture suspended for 6 months. Not appealed.
000823:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 000817, tested positive for methamphetamine.

 000901:  NJP for violation of UCMJ, Article 112A:
 Specification: Wrongfully use methamphetamine.
Awarded forfeiture of $502.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-1. Not appealed.
000908:  Medical evaluation for drug abuse found no diagnosis. Recommend Impact course and administrative separation.

000922:  Applicant found fit for separation.

 000922:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
000922:  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.

000926:  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 positive results on a urinalysis screening conducted on 000815 for methamphetamine. By your actions, you have demonstrated that you have absolutely no potential for further military service.

001010:  SJA review determined the case sufficient in law and fact.

001018:  GCMCA [Commanding General, 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 20001020 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. When the service of a member of the Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by three nonjudicial punishment proceedings for five violations of Articles 81, 92, 111, 112a and 134 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces, nor can reenlistment serve as a basis for which the Board grants relief. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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. 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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