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NAVY | DRB | 2004 Marine | MD04-00942
Original file (MD04-00942.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-00942

Applicant’s Request
The application for discharge review was received on 20040518. The Applicant requests the characterization of service received at the time of discharge be changed to uncharacterized. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area. 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 20041022. 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. “My request is that my discharge status be changed to such that re-entry into the armed services is acceptable. This change primarily affects my re-entry code. I would like for my re-entry code to change so that I may serve my country in the military. I would like back into the military, Marine Corps, so that I may continue what I started. The type of separation was a discharge with character of service being Under Other Than Honorable Conditions. Authority for separation was MARCORSEPMAN PAR 6210.5 with reason of misconduct. All through high school my only desire beyond high school was to join the Marine Corps. After completing basic training, during my 10 days leave, I exhibited extreme immaturity and poor judgement which ultimately resulted in my discharge. Over the past few months I have had time to look back at my mistakes and poor judgement and certainly realize my conduct was inappropriate and now wish I could have that time back to do the things I should have done that would not have put me in this position. I have used these past few months to mature and realize my real goal, if given the opportunity, is to succeed in the United States Marine Corps.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copies of Applicant’s DD Form 214 (2)
Copy of Travel Orders
Copy of Reference Request (2 pages)
Letter from Applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                020809 - 030713  COG

 Period of Service Under Review :
Date of Enlistment: 030714               Date of Discharge: 031125

 Length of Service (years, months, days):
         Active: 00 04 11
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 43

 Highest Rank: PVT                          MOS : 9971

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (1)                       Conduct: 4.2 (1)

 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 :

020731:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

031031:  NAVDRUGLAB [SAN DIEGO, CA], reported Applicant’s urine sample, received 031024, tested positive for [THC].
031104:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, to wit: THC: 76ng in his system, while attached to Reception Plt, SOI(W) on or about 031021.
Awarded forfeiture of $532.00 pay per month for 2 months, restriction and extra duties for 45 days. Not appealed.
031106:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
031106:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
031106:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was PVT B_’s wrongful use of marijuana. Based on the urinalysis test given on 031021, PVT B_ tested positive for marijuana which was later adjudicated at NJP.

031107:  Counseled for deficiencies in performance and conduct. [Concerning illegal drug involvement, (THC:76ng) identified in his system through urinalysis confirmed by Navy Drug Lab SAN DIEGO, CA msg (312237Z OCT03).]

031107:  Applicant refused Medical Officer’s evaluation.

031118:  SJA review determined the case sufficient in law and fact.

031120:  GCMCA [Commanding General] 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 20031125 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. 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.

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. 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 P1900.16F), effective 01 September 2001 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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