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USMC | DRB | 2005_Marine | MD0500145
Original file (MD0500145.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00145

Applicant’s Request
The application for discharge review was received on 20041029. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 20050118. 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. “Undue process – Evidence and documentation was not looked at or taken into consideration. See Exhibits [A] ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of the Applicant’s DD Form 214
Chronological Order of Events, not dated
Letter from Applicant, dtd October 16, 2004
Copy of Commanding Officer, A Company, Request for Administrative Separation     Letter ICO PFC J_ L. B_, dtd 2 Feb 2004
Copy of Administrative Remarks, dtd 20040202
Copy of letter from CO, 8 th Marine Regiment, C. M. G_, dtd 25 Feb 04
Copy of notarized statement from D_ C_, dtd 18 Feb 2004
Copy of 3 news articles from internet
Copy of 2 pages from Marine Corps Personal Service Manual
Copy of 2 pages from the Marine Corps Recruit Depot/ Eastern Recruiting Division,        Substance Abuse Student Handout
Copy of Certificate of promotion to Lance Corporal, 1 Sep 2002
Copy of 2 pages of MCTFS Record of Service from Applicant’s service record, dtd          2/12/2004
 Coy of 4 pages of the Applicant’s Verification of Military Experience and Training, dtd          3/15/04
Copy of Certificate of Completion and curriculum for Non-Lethal Weapons and Tactics      Course, dtd 30   Aug 2002
 Copy of Certificate of Completion of USMC Martial Arts Program, dtd 16 Aug 2003
Copy of Certificate of Completion of MCI course Infantry Squad Leader: Combat    Leadership, dtd 10 Sep 2003
Copy of Letter of Completion of MCI Course, not dtd
 Copy of Certificate of Completion of MCI course Terrorism Awareness for Marines, dtd     10 Sep 2003
 Copy of Letter of Completion of MCI Course, not dtd
Copy of Certificate of Completion of MCI course Desert Operations, dtd 10 Sep 2003
Copy of Letter of Completion of MCI Course, not dtd
Copy of Certificate of Completion of MCI Course Personal Financial Management, dtd 1     10 Sep 2003
Copy of Letter of Completion of MCI Course, not dtd
Copy of Certificate of Participation in Operation Iraqi Freedom, dtd 25 September 2003
Letter from W_ R. M_, not dated
Copy of letter from S_ M_, dtd March 15, 2004
Copy of letter from Lieutenant Colonel M. R. S_, dtd Apr 28 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR (J)               010511 - 010708  COG

 Period of Service Under Review :
Date of Enlistment: 010709               Date of Discharge: 040323

 Length of Service (years, months, days):

         Active: 02 08 15
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 90

 Highest Rank: LCpl                         MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (8)                       Conduct: 4.2 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: CAR, NDSM, SSDR, REB (4)

 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 :

010426:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
010511:  Applicant acknowledges marijuana use on enlistment physical.
040113:  NAVDRUGLAB JACKSONVILLE FL, reported Applicant’s urine sample, received 040109, tested positive for THC.

040130:  NJP for violation of UCMJ, Article 112a: In that LCpl B_ did, at HP 118. Camp Lejeune, NC, on or about 1100, 20040105, wrongfully use marijuana, a controlled substance, to wit: LCpl B_’s urine sample tested positive for THC.
Awarded: Reduction to rank of PFC (E-2), forfeiture of $668.00 per month for 2 months, restriction and extra duties for 45 days. Forfeiture of $668.00 pay per month for 2 months, suspended for 6 months, at which time, unless sooner vacated, will be remitted without further action. Not appealed.
040202:  Counseled for deficiencies in performance and conduct. [Violation of Marine Corps regulations by wrongfully using marijuana.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

040202:  Counseled for deficiencies in performance and conduct. [SNM received Battalion level NJP on 040130 for violation of article 112a for testing positive for THC.] Applicant advised that 5 working days after acknowledge of this entry, a written rebuttal can be submitted and this rebuttal will be filed on the document side of my SRB. Applicant chose to make a rebuttal.
040205:  Substance Abuse Rehabilitation Program Naval Hospital Camp Lejeune provides Applicant with statement of understanding for substance abuse treatment at a Veterans Administration Medical Center after discharge. Applicant provided with contact information for VAMC near his home of record.

040205:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by violation of UCMJ Article 112a, resulting in battalion level nonjudicial punishment held on 30 January 2004. .
040205:  Applicant advised of rights and having consulted 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.

040210:  Evaluation Report for Substance Abuse submitted to Applicant’s Commanding Officer. Applicant’s case evaluated by a credential provider on 040210.
         Diagnosis: No diagnosis.
 Recommendation: IMPACT to be scheduled by the Bn SACO. Remain abstinent from all substances. Individual [Applicant] should be held strictly accountable for their actions. Per the references, individual may be processed for administrative separation for illicit drug use.
040212:  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 incident of illegal drug use as identified in NAVDRUGLAB, Jacksonville, FL msg dtd 131916Z Jan 04. Commanding officer’s comments [verbatim]: “ After personally interviewing Private First Class B_, it is my determination that the SNM’s potential for future service in the Marine Corps is severely limited. He has tested positive for four times the legal amount of THC in his urine. SNM claims that he has been taking supplements that contain Hemp products and that he was, without his knowledge, served beverages that contained ground up marijuana by friends of his while on leave. With the amount of THC he tested positive for, he still claims that he had no knowledge that he was under the influence at the time. If this were the case, SNM has a responsibility to report the incident, which he had not. It was only after he was found guilty at NJP, that he introduced this story as the reason for his positive test results. He admits to ingesting marijuana. I recommend that PFC B_ be discharged at the earliest possible convenience of the Division with an other than honorable characterization of service.”

040309:  SJA review determined the case sufficient in law and fact.

 040309:  GCMCA, Commanding General, 2d Marine Division, 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 20040323 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. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, the Applicant alleged “undue process – evidence and documentation was not looked at or taken into consideration”. The record contains no evidence of any wrongdoing by the government in the administrative discharge processing. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

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.

Despite a service member’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. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, 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. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Again, the Board discovered no impropriety or inequity and therefore considers the Applicant’s discharge proper and equitable. Relief denied.

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. Additionally, the Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits. Neither issue serves to provide a foundation upon which the Board can grant relief.

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. 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 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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