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NAVY | DRB | 2004 Marine | MD04-01032
Original file (MD04-01032.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01032

Applicant’s Request
The application for discharge review was received on 20040610. The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requested a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant did not list a representative on his DD Form 293. In the acknowledgement letter, the Applicant was 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 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 discharge was based on one singal incident. Up until the time of my discharge my record was spotless.
My greatest wish is to serve my country again but I cannot achieve that goal unless my discharge is changed.

I was discharged because of a positive urine test for marijuana. I have gone to counseling. The attached certificate proves my completion.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Certificate of Achievement, dtd 10/10/03

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None                      
         Inactive: USMCR (J)               010209 - 010916  COG

 Period of Service Under Review :
Date of Enlistment: 010917               Date of Discharge: 020418

 Length of Service (years, months, days):

         Active: 00 07 02
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 59

 Highest Rank: PFC                          MOS: 2100, Basic Ordnance Marine

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

001214:  Applicant disqualified for military service as a result of his recent medical examination at the Military Entrance Processing Station. He is disqualified for 45 days because of marijuana use at the time of examination.
010111:  Applicant separated without military obligation from the Delayed Entry Program (DEP).
010207:  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.
010917:  Applicant reported for training at MCRD Parris Island, SC.

020228:  NAVDRUGLAB [Jacksonville, FL] reported Applicant’s urine sample, received 020222, tested positive for THC.

020312:  SACO/DACO eval/comment. Cannabis Abuse per MCO P1700.24B. Advised of the treatment facility closest to his home of record.

020313:  Counseled regarding deficiencies, specifically, the illegal use of marijuana. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.
020313:  NJP for violation of UCMJ, Article 112a (2 specs): using a controlled substance.
 Awd red to Pvt/E-1, forf of $552.00 per month for 2 months, 60 days restriction. Not appealed.
020313:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a “positive urinalysis.”
020314:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020320:  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 admitted use of marijuana on two separate occasions after boot camp and a urinalysis nanogram level of 904.

020409:  SJA review determined the case sufficient in law and fact.

020415:  GCMCA [Commanding General, Training Command, Quantico, VA] 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 20020418 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: The Applicant states his discharge was based on one isolated incident in an otherwise “spotless” record. Despite a member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain good order and discipline. The Applicant’s service record is marred by the awarding of nonjudicial punishment (NJP) for illegal drug use; thereby, substantiating the misconduct for which he was separated. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. Additionally, the record shows the Applicant was dropped from the Delayed Entry Program (DEP) due to a positive urinalysis and subsequently received a waiver in order to enter the Marine Corps. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board discovered no impropriety or inequity and considers his discharge proper and equitable. Relief denied.

T he 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. T his issue does not serve to provide a foundation upon which the Board can grant relief.

 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 additional documentation to support any claims of post-service accomplishments 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 P1900.16F), 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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