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NAVY | DRB | 2004 Marine | MD04-01213
Original file (MD04-01213.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01213

Applicant’s Request
The application for discharge review was received on 20040722. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

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:

1. “I also would like to have an upgrade on my reenlistment code from a 4B to at least a 2 so I can reenlist please if you cant give me an upgrade on my discharge please give me one on my reentry code.
Thank you for taking your time on this subject and I hope you reach a understanding verdict. C_ S_ (Applicant)”

 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)                990226 - 990314  COG

 Period of Service Under Review :
Date of Enlistment: 990315               Date of Discharge: 011228

 Length of Service (years, months, days):

         Active: 02 09 14 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 35

 Highest Rank: LCpl                         MOS: 3531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (8)                       Conduct: 4.0 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, MUC, LoA, RMB

 Days of Unauthorized Absence: 9

 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 :

980825:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
000906:  Counseled for deficiencies in performance and conduct. [Writing a check while having insufficient funds in the bank.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
001121:  NJP for violation of UCMJ, Article 86:
 Specification: Absent from appointed place of duty on 001108 until 001115 (7 days).
Awarded forfeiture of $263.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
010824:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010817, tested positive for MDA and MDMA.

010907:  Applicant informed eligible but not recommended for promotion to Cpl for the months of Oct, Nov, Dec because of drug related incident.

 011025:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence 0530, 010820 to 0530, 010821 (1 day).
Violation of UCMJ, Article 112A:
Specification: Wrongfully use methylenedioxyamphetamine (MDMA).
Awarded forfeiture of $584.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-2. Not appealed.
011126:  Applicant refused medical officer’s evaluation. Applicant acknowledged VA treatment location statement.

011130:  Counseled for deficiencies in performance and conduct. [Your documented positive drug urinalysis.] Necessary corrective actions explained, sources of assistance provided, and disciplinary and discharge processing notice issued.
011130:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
011130:  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 and to submit a statement.

 011130:  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 drug urinalysis, as documented by NAVDRUGLAB message 241631Z AUG 01.


011205:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence 0630, 011124 to 0700, 011125 (1 day).
Violation of UCMJ, Article 92:
Specification: Disobeyed a lawful order by leaving the 43 Area compound while on restriction on 0630, 011124.
Awarded forfeiture of $462.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-1. Not appealed.
011212:  SJA review determined the case sufficient in law and fact.

011226:  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 20011228 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. Drug abuse warranted processing for separation. Separation under these conditions generally results in characterization of service under other than honorable conditions. Relief denied.
Concerning 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 only during the processing of a formal application for enlistment through a recruiter.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident during the Applicant’s enlistment. Additionally, 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 the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 5420.174D 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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