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USMC | DRB | 2005_Marine | MD0500483
Original file (MD0500483.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD05-00483

Applicant’s Request
The application for discharge review was received on 20050125. 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 20050608. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no inequity in the characterization of the Applicant ’ s service but did discern an impropriety in the discharge action. The Board’s vote was unanimous that the character and reason of the discharge shall change to: HONORABLE/COMPLETION OF REQUIRED ACTIVE SERVICE, authority: MARCORSEPMAN Par. 1005 with a separation code of JBK1.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “My discharge was inequitable because it was based on one isolated incident in 48 months of service with no other adverse action. I served my country proudly for 4 solid years. I reenlisted, wanting to continue my family tradition. I was the 63 rd Marine in my family. Now I’m trying to enlist in the National Guard and I’m unable to do so. The reason for my discharge was not heavy enough to deny me the right to defend my country. Please consider upgrading my discharge characterization, as well as my RE code.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
No documentations submitted by the Applicant.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                970219 - 970629  COG

 Period of Service Under Review :
Date of Enlistment: 970630               Date of Discharge: 010711

 Length of Service (years, months, days):

         Active: 04 00 12 (Extension of enlistment not found in service record)
         Inactive: None

 Age at Entry: 17(Parental Consent) Years Contracted: 4

Education Level: 12                        AFQT: 75

 Highest Rank: Cpl                          MOS: 4066

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (11)                      Conduct: 4.3 (11)

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, SSDR, AFEM, CGMUC, HSM, GCM

 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 :
970214:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
000313:  Counseled this date concerning the following deficiencies: [Insubordinate conduct towards a Warrant Officer, Non-Commissioned Officer or Petty Officer. Specifically: On Thursday March 9, 2000, SNM was instructed at 1625 to report to SSgt H_ to fix a computer/printer problem. SNM did not follow the order from SSgt H_ and instead went home for the day.] Necessary corrective actions explained, sources of assistance identified, and disciplinary and administrative discharge warnings issued.
010220:  NAVDRUGLAB San Diego, CA reported Applicant’s urine sample, received 010214, tested positive for Cocaine and THC.

 010308:  NJP for violation of UCMJ, Article 112a: Tested positive for cocaine and
 THC on 010209. Awarded forfeiture of $691.00 pay per month for 2 months (suspended for 6 months), reduction to E-3, and oral reprimand. Not appealed.
010309:  Commanding Officer, B Co, 9th Communication Battalion letter to battalion Commanding Officer advising that on 010212, Cpl M_ (Applicant) participated in a battalion urinalysis scheduled for all Marines returning from leave or TAD. Cpl M_ (Applicant) had been TAD in support of JTF exercise. On 010222, the command was informed that Cpl M_'s (Applicant's) urinalysis tested positive for cocaine and THC (marijuana).

010309:  Applicant refused medical evaluation by the Naval Addictions rehabilitation and Education Department, Naval Hospital, Camp Pendleton, CA and signed statement of refusal of Medical Officer’s Evaluation (MOE).

010309:  Applicant advised of VA alcohol and drug rehabilitation treatment including finding the VA treatment facility nearest his home after he is separated.

010312:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service is under other than honorable conditions by reason of misconduct due to drug abuse. The basis is illegal use of marijuana and cocaine.
010314:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
010507:  Commanding Officer, 9th CommBn, I Marine Expeditionary Force Headquarters Group 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 NJP and conviction in March 2001 for violation of Art 112a. LCpl M_ (Applicant) tested positive for both THC and Cocaine. The concentration of cocaine was measured at 8118 ng/Ml (level for positive test is 100 ng/Ml). During that NJP, SNM stated that he fully understood the command policy regarding drug abuse/use. Commanding officer’s comments: (verbatim): LCpl M_ claims he ingested the drugs at a party where he was inebriated and that it was the only time he had used drugs. He is adamant that he wishes to continue his service and that “never again” will he use drugs. He has been a member of this command since January 1998 and repeatedly received the policy statement and drug lecture from the Bn Commander all the way down to the Platoon SNCO level....This specific case is compounded by the fact that there was use of multiple drugs and that the level of cocaine was extremely high. I recommend LCpl M_ be separated with an other than honorable characterization of service, a reenlistment code of RE-4B and separation proficiency and conduct marks of 4.5 and 3.0 respectively.
010517:  Commanding Officer, I Marine Expeditionary Force Headquarters Group, recommended to Commanding General, I Marine Expeditionary Force Headquarters Group, that the Applicant be discharged under other than honorable by reason of misconduct due to drug abuse.
010604:  Applicant signed a Waiver of Rights to Separation Proceedings and elected not to request a hearing before an Administrative Board. In waiver, Applicant did state that he planned to submit a written rebuttal to the recommended characterization of discharge.

010612:  Applicant’s Rebuttal Statement. Applicant requested that the separation authority approve a general discharge. Applicant's comments (verbatim): I have been an outstanding Marine for nearly four years of my enlistment. In those four years, I've received 4 Certificates of Commendation, 3 Meritorious Masts, and 2 recommendations for the Navy and Marine Corps Achievement Medal. I have been overseas numerous times on various missions. In each mission I played a very important role in getting the job done. On every occasion that I was tasked with a job, it was done with little to no discrepancies.

010702:  SJA review determined the case sufficient in law and fact.

010706:  Commanding General, I Marine Expeditionary Force, authorized 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 20010711 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 equitable but improper (C, D, and E).

Issue 1: The Applicant states that his discharge was "...based on one isolated incident in 48 months of service with no other adverse action.” Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Marine Corps in order to maintain proper order and discipline. Misconduct did occur as the Applicant’s service record is marred by the award of nonjudicial punishment (NJP) for violation of UCMJ Article 112a - wrongful use of controlled substances, thus substantiating the reason for his separation. The summary of service clearly documents the facts that misconduct due to drug abuse was the reason the Applicant was discharged. Separation for Marines who abuse (use) illegal drugs is mandatory and generally results in characterization of service under other than honorable conditions. No other narrative reason for separation or characterization could more clearly describe why the Applicant was discharged. Relief on this basis is denied.

The Board discovered, however, that contrive to regulations, the Applicant was retained on active duty past his End of Current Contract (ECC) for administrative separation processing. The separation authority directed the Applicant's discharge six days beyond that ECC. This is a procedural error as the Applicant's command retained him beyond the time allowable to complete his administrative discharge and no extension of his enlistment, assignment to medical or legal hold, or lost time was found in the record or suspected, under the presumption of regularity, to have occurred. The fact that the Applicant's command committed this error and allowed him to reach his ECC requires the NDRB to change the narrative reason to reflect the Applicant's completion of required active service. Such a narrative reason further requires the Board to change the characterization of the Applicant's service, based on his cumulative proficiency and conduct markings, to honorable. This relief is therefore provided.

 Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Marine Corps or any other of the Armed Forces, the Board 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.



Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 31 August 2001.

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 .
E. Marine Corps Order P1900.16F of 30 May 2001, Marine Corps Separation and Retirement Manual (MARCORSEPMAN), Chapter 1, Para 1005, Discharge for Expiration of Enlistment or Fulfillment of Service Obligation.

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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