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NAVY | DRB | 2004 Marine | MD04-01394
Original file (MD04-01394.rtf) Auto-classification: Denied


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


ex-PVT, USMC
Docket No. MD04-01394

Applicant’s Request
The application for discharge review was received on 20040902. 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 discharge 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 20041229. 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:

 “I am requesting this request because I want to re-enlist in the Army. The discharge happened two years ago and I learned to be a respectable member in society.

I have leaned that I made mistakes while in the Marines but with the time spent out of the military I have made a commitment that I am putting forth all my attention and heart and soul to be an active member in the Army. I wish to fulfill my duties as an American and a patriot and serve this country in their time of need. If you can please respectfully upgrade my discharge so that I can answer the call of duty.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant (2 pages), dtd 08-22-2004
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR (J)               991027 - 000604  COG
Period of Service Under Review :
Date of Enlistment: 000605               Date of Discharge: 020215

 Length of Service (years, months, days):
         Active: 01 08 11 (Does not account for lost time.)
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 67
Highest Rank: PFC                          MOS: 6531

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.1 (6)                       Conduct: 3.6 (6)

 Military Decorations: None
Unit/Campaign/Service Awards: RMB, LOA

 Days of Unauthorized Absence: (4) 010621-010624
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 :

991026:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
010822:  Applicant’s Official Statement to Commanding Officer, PASD admitting to smoking a half of joint of marijuana while on leave between 010605 and 010620.
010822:  Counseled for deficiencies in performance and conduct. [Your use of marijuana on 010605 as evidenced in a verbal statement given to the Commanding Officer of PASD on 010822] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
011023:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 86.
          Specification: Unauthorized absence from 010621 to 010624. Charge II: violation of the UCMJ, Article 92. Specification: Drinking underage. Charge III: violation of the UCMJ, Article 112a. Specification: Wrongful use of marijuana.
          Finding: to Charge I, II and III, and the specification thereunder, guilty.
          Sentence: Forfeiture of $695.00 pay per month for 1 month, reduced to E-1, 30 days confinement.
          CA action 011030: Sentence approved and ordered executed.

 011023:  Applicant to confinement.

011116:  Applicant from confinement.

011203:  Substance Abuse Counselor Screening. SNM [Applicant] is Command referral, admitted to underage drinking in Jun 2001 but has not drank since then. SNM [Applicant] does not appear to meet any criteria at this time. No further action necessary.

011204:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
011204:  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.
011227:  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 Summary Court Martial conviction of 011023 for wrongful use of marijuana.
020122:  Counseled for deficiencies in performance and conduct. [Regarding military requirements for a medical officer’s evaluation for addiction prior to discharge] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020207:  SJA review determined the case sufficient in law and fact.
020212:  GCMCA, Commanding General, 3d Marine Aircraft Wing, 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 20020215 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).
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 is not warranted.

When the service of a member of the U.S. 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 was found guilty by a summary court-martial of violating Articles 86, 92, and 112a 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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.

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 sufficient documentation for the Board to consider.

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 P1900.16F), 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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