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NAVY | DRB | 2004 Marine | MD0401475
Original file (MD0401475.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-01475

Applicant’s Request
The application for discharge review was received on 20040921. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel closest to Sequim, Washington. 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) does not travel; all hearings are held in the National Capital Region, Washington DC. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050601. 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 D___ L. S___ request an upgrade from Under Other Than Honorable Conditions to Honorable because I wish to re-enter the Marine Corps and finish my service time. I admit to making a mistake but feel my discharge was unnecessary. It is my duty to myself and my country to finish my time in service and prove my good intent and well being.”

 Item 16. REMARKS. “I like many other people make mistakes and regret a lot of them by the Marine have changed my life and made me a better person. I’ve learned discipline and responsibility thank to drill instructor and the Marine Corps. My decision to smoke marijuana was a choice that I made but feel that another form of discipline could have been used other than being discharged. I am willing to accept another form of discipline if nessicary and willing to take any appropriate means nessicary to continue my service time in the United States Marine Corps. I request at the mercy of this hearing a second chance based on sound judgment of my character. Thank you D__ L. S___”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                010806 - 020714  COG

 Period of Service Under Review :
Date of Enlistment: 020715               Date of Discharge: 030113

 Length of Service (years, months, days):

         Active: 00 05 29
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 35

 Highest Rank: PVT                          MOS: 9971

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (1)                       Conduct: 4.3 (1)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 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 :

010802:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

021115:  NAVDRUGLAB SAN DIEGO, CA, reported Applicant’s urine sample, received 021108, tested positive for THC.

021120:  VA Treatment Location Statement. Applicant counseled at Substance Abuse Rehabilitation Program Department, Camp Pendleton, CA. Applicant refused treatment. Applicant given contact information for drug and alcohol abuse treatment at a VA facility closest to his place of residence.
021209:  NJP for violation of UCMJ, Article 112a: Wrongful use of THC: 104ng at Stud Admin Co, SOI(W) on 021105.
 Awarded forfeiture of $522.00 pay per month for 2 months, restriction and extra duties for 45 days. Not appealed.
021209:  Counseled for deficiencies in performance and conduct. [Illegal drug involvement, (THC:104) usage identified through urinalysis confirmed by Navy Drug Lab SAN DIEGO, msg 151728Z NOV02. Specific recommendations for corrective action: don’t possess or use drugs. Seen by substance abuse counselor on 021120. I (Applicant) refused treatment at this time].

021213:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to drug abuse.
021213:  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.

021213:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation is Private S___’s wrongful use of marijuana. Based on the urinalysis test given 021105, Private S___ tested positive for marijuana which was later adjudicated at nonjudicial punishment.

021224:  SJA review determined the case sufficient in law and fact.

021230:  GCMCA, Commander, Marine Corps Base Camp Pendleton, 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 20030113 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. 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.

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.

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’s service was marred by a nonjudicial punishment proceedings for violation of Articles 112a (wrongful use of controlled substances) 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. Relief is not warranted.

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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