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USMC | DRB | 2005_Marine | MD0500153
Original file (MD0500153.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00153

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 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. “Because I realize the career I gave up, and I have not felt good about myself since leaving the Marines. I want to feel like I am doing something worthwhile with my life again like I did while in the Marines I didn’t realize that until it was too late. I am asking for another chance to “get it right.””
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: USMC              990120 – 990222  ELS
         Inactive: USMCR(J)                000428 - 000508  COG
                  USMCR(J)                 980930 – 990119  COG

 Period of Service Under Review :
Date of Enlistment: 000509               Date of Discharge: 020225

 Length of Service (years, months, days):

         Active: 01 09 17 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rank: PFC                          MOS: 3531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (5)                       Conduct: 3.2 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: RMB

 Days of Unauthorized Absence: 6

 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 :

000424:  Initial enlistment contract documents admission of pre-service drug experimentation. Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

Undated:         Counseled for deficiencies in performance and conduct. [UA.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
001108:  NJP for violation of UCMJ, Article 86: UA from 0500, 001023 to 0500, 001024.
 Awarded forfeiture of $150.00, restriction and extra duties for 45 days. Not appealed.
010109:  Counseled regarding deficiencies, specifically, the illegal use of marijuana. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.

010111:  Counseled regarding deficiencies, specifically, failure to participate in drug dependency treatment. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.
010322:  Summary Court-Martial.
                  Charge I. Violation of UCMJ, Article 112a: Wrongful use of marijuana.
 Charge II: Violation of UCMJ, Article 134: Incapacitated for duties on 010202.
                   Finding. Guilty to all charges.
 Sentence. Forfeiture of $500.00, restriction for 15 days, confinement for 15 days, reduction to Pvt.
CA action: 010323. Approved and ordered executed.
010605:  NJP for violation of UCMJ, Article 112a: Wrongful use of THC.
 Awarded forfeiture of $502.00 per month for 2 months, restriction and extra duties for 45 days. Not appealed.
010622:  To UA.

010626:  From UA, to duty.

010725:  Summary Court-Martial.
                  Charge I. Violation of UCMJ, Article 112a: Wrongful use of marijuana.
                  Finding. Guilty.
                  Sentence. Forfeiture of $643.00, restriction and extra duties for 45 days.
 CA action: 010827. Approved and ordered executed. Forfeiture suspended for 6 months.
011210:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020130:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalyses resulting in two summary courts-martial.
020130:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.
020220:  SJA review determined the case sufficient in law and fact.

020220:  GCMCA [CG, 2d MAW] 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 20020225 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. In addition to two summary courts-martial and one NJP for illegal drug use, the Applicant refused drug treatment for dependency, and was in an unauthorized absence status on two occasions. The drug abuse alone warranted processing for separation. 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.
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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