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USMC | DRB | 2005_Marine | MD0500099
Original file (MD0500099.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00099

Applicant’s Request
The application for discharge review was received on 20041020. 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 20050428. 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 would like to reenlist. My other than Honorable discharge was inequitable because it was based on one incident. It was my only offense in 15 months of honorable service and I received a good conduct medal.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, dated September 23, 2004
Applicant’s DD Form 214 (8)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                000619 - 010611  COG

 Period of Service Under Review :
Date of Enlistment: 010612               Date of Discharge: 020925

 Length of Service (years, months, days):

         Active: 01 03 13
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 38

 Highest Rank: PFC                          MOS: 8152

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.2 (4)                       Conduct: 3.2 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, RMB, PMB

 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 :

000518:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
010608:  Drug waiver for Applicant approved.

020618:  Counseled: Applicant eligible but not recommended for promotion to LCPL for the 3 Rd 2002 promotion period because of lack of maturity and judgment. Applicant chose not to make a statement.
020715:  NJP for violation of UCMJ, Article 112A:
 Specification: Did, at or near MCSFCo, NSB, Kings Bay, Georgia, on or about 7 June 2002, use THC.
Violation of UCMJ, Article 134:
Specification: Did, at or near MCSFCo, NSB, Kings Bay, Georgia, on or about 7 June 2002, communicate to to LCpl H_ a threat, to wit: “you better not f_ tell, we’ll get f_ people to come after you, you get us in trouble, we’re going to get you in trouble.
Awarded forfeiture of $552.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-1. Not appealed.
020801:  Counseled for deficiencies in performance and conduct. [Illegal drug involvement, specifically; marijuana identified through your admission to NCIS and guilty plea during NJP proceedings. Drug abuse.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020801:  Counseled for deficiencies in performance and conduct. [Drug Abuse. Specific recommendations for corrective action are not to use drugs and to seek assistance, which is available through the chain of command, unit SACO, and base CAAC.] Applicant understands that he is being processed for the following administrative action: Involuntary Administrative Separation.

020806:  Commanding Officer notifies Commandant of the Marine Corps that the Applicant has been permanently decertified for duty in the Personnel Reliability Program (PRP).
020822:  Counseled concerning eligibility for substance abuse treatment. Applicant provided with information for treatment at the Veterans Affairs Office nearest to his home of record after discharge.

020830:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was admitted use of illegal drug during an NCIS investigation.

020917:  SJA review determined the case sufficient in law and fact.

020919:  GCMCA, Commander, Fleet Marine Force, Atlantic, 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 20020925 with a under other than honorable conditions by reason of misconduct due to drug abuse (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (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.

The Applicant states his discharge was based on one isolated incident in “15 months of honorable service”. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. 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 Applicant’s service record is marred by award of nonjudicial punishment (NJP) for violation of Article 112a of the UCMJ (illegal drug use) and Article 134 (communicating a threat), thus 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. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

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 V, Para 502, Propriety .

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .
D. 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.

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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