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USMC | DRB | 2005_Marine | MD0500511
Original file (MD0500511.rtf) Auto-classification: Denied


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

ex-Pvt, USMCR
Docket No. MD05-00511

Applicant’s Request
The application for discharge review was received on 20050202. 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 20050512. 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. “Injustice, due to time frame for which discharge was implemented. The Marine Corps states that they have 365 days from the date of NJP to administer their punishment which in my case took almost 3 yrs! I request a characterization change to honorable w/reenlistment codes which will allow me to reenlist into Active duty service in the armed forces, or the opportunity to Finish the remainder of my contract & ending w/honorable discharge. In the case of a last resort pay for 1 drill year which I made up unpaid w/an honorable discharge”.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from the Applicant to Commandant of the Marine Corps (MMSB-20), 20050124
Copy of Letter of Administrative Discharge from the United States Marine Corps, 12 Jul   04
Copy of Official Notification of Required Military Duty, (2 pages) 2 Jul 03
Copy of Official Notification of Required Military Duty, 14 Jul 03
Copy of Official Notification of Required Military Duty, 31 Jul 03
Copy of Official Notification of Required Military Duty, 18 Sep 03

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 990721               Date of Discharge: 040713

 Length of Service (years, months, days):

         Active: 00 09 04
         Inactive: 04 03 29

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 80

 Highest Rank: PFC                          MOS: 3043

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                          Conduct: NMF*

 Military Decorations: None

 Unit/Campaign/Service Awards: RMB

 Days of Unauthorized Absence: None

* No marks found in the service record.

 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 :

990720:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.



990721:  Enlistment contract into the USMCR documents acknowledgement of the requirement to participate in 48 scheduled drills and not less than 14 days of annual training per year for 6 years upon completion of initial active duty training.

990721:  Applicant reported for initial tour of active duty for training.

991216:  Applicant released from initial tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.

000805:  Counseled this date by certified mail for deficiencies in performance and conduct. [Failure to attend scheduled drills (000603)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010203:  Counseled for deficiencies in performance and conduct. [Unexcused absences from scheduled drills (5 Nov 00)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Applicant not available for signature].

010203:  Counseled for deficiencies in performance and conduct. [Unexcused absences from scheduled drills (2 Dec 00)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Applicant not available for signature].
Not Dated:       Counseled for deficiencies in performance and conduct. [Unexcused absences from scheduled drills (3,4 Mar 01)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Applicant not available for signature].

010601:  Counseled this date by certified mail for deficiencies in performance and conduct. [Failure to attend scheduled drills (5,6 May 01)] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010614:  Commanding Officer notifies Applicant of Convening of a Competency Review Board (CRB). Applicant notified that the CO intends to initiate a competency review board and reduce the Applicant to Private First Class due to technical/professional incompetence. The factual circumstance upon which the recommendation is made is unexcused absences: 20010408 (2) 20010505 (2) 20010407 (2) 20010506 (2) 20010304 (2) 20010303 (2) 20010204 (2) 20010203 (2) 20011202 (2). Applicant notified by certified mail #7099 3400 0003 4829 4987.

010823:  Counseled this date by certified mail for deficiencies in performance and conduct. [Failure to attend scheduled drills (7,8 Apr 01)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010823:  Counseled this date by certified mail for deficiencies in performance and conduct. [Failure to attend scheduled drills (4,5 Aug 01)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Applicant not available for signature].

011019:  NAVDRUGLAB JACKSONVILLE FL reported Applicant’s urine sample, received 011016, tested positive for THC.
011104:  NJP for violation of UCMJ, Article 112a. Possession of a controlled substance (THC/marijuana) at Sup Co(-), 4 th SupBn, 4 th FSSG urinalysis conducted on 7 October 2001.
 Awarded reduction to Pvt, E-1. Forfeiture of $86.00. Forfeiture suspended for 6 months at which time, unless sooner vacated, the forfeiture will be remitted without further action. Not appealed.
011202:  Administrative Remarks: Applicant is eligible but not recommended for promotion to LCPL due to 3 months promotion restriction of the NJP awarded on 011104. [Applicant not available for signature].

011202:  Counseled this date concerning my illegal drug involvement, THC identified through urinalysis confirmed by Navy Drug Lab JAXFL msg 192220Z Oct 01. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Applicant not available for signature]
020111:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NAVDRUGLAB JACKSONVILLE FL MSG 192220Z OCT 01. [Not signed]. Notification, Acknowledgement of Rights, BCNR/NDRB information were mailed to the Applicant on 14 Jan 2002, certified mail #7000 1670 0006 6328 9230. The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights.

020202:  Counseled for deficiencies in performance and conduct. [Unexcused absences from scheduled drills (2 Dec 01)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Applicant not available for signature].

020302:  Applicant missed 4 drills. Unit attempted to contact by phone, no answer. Left message, which was not returned.

020302:  Counseled for deficiencies in performance and conduct. [Unexcused absences from scheduled drills (1,2,3, Feb 02)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Applicant not available for signature].].

020303:  Applicant missed 4 drills. Unit attempted to contact by phone, no answer. Left message, which was not returned.

020403:  Counseled for deficiencies in performance and conduct. [Unexcused absences from scheduled drills (2,3, Mar 02)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Applicant not available for signature].

020406:  Administrative Remarks: Applicant is eligible but not recommended for promotion to PFC for the May 2002 promotion quarter because of unsatisfactory participation, specifically failure to attend scheduled drills.

020407:  Counseled for deficiencies in performance and conduct. [Unexcused absences from scheduled drills (6,7 Apr 02)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Applicant not available for signature].

020501:  Applicant missed 5 drills. Unit attempted to contact by phone, no answer. Left message, which was not returned.
020529:  Applicant missed 5 drills. Unit attempted to contact by phone, no answer. Left message.
020601:  Counseled for deficiencies in performance and conduct. [Unexcused absences from scheduled drills (3,4,5 May 02)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Applicant not available for signature].

020602:  Applicant missed 5 drills. Unit attempted to contact by phone, no answer. Left message.

020908:  Counseled for deficiencies in performance and conduct. [Unexcused absences from scheduled drills (30 May – 2 Jun 02)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Applicant not available for signature].
020908:  Counseled for deficiencies in performance and conduct. [Unexcused absences from scheduled drills (1,2,3,4 Aug 02)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Applicant not available for signature].

020908:  Administrative Remarks: Applicant is eligible but not recommended for promotion to LCPL for the Aug 02 promotion quarter because of unsatisfactory participation, specifically failure to attend scheduled drills.

020927:  Commanding Officer, Supply Company, Fourth Supply Battalion, Fourth Force Service Support Group, recommended that the Applicant be discharged with a other than honorable discharge. Commanding Officer’s comments: “ Private C_ W. F_ was found to traces of THC in his urine during a routine urinalysis screening on the drill of October 2001. Since this Marine was notified of this, he has not attended drill and expresses no desire to continue at this unit. We have made multiple attempts to contact him, but Private F_ has changed residences without providing updated contact information to his chain of command. Private F_ continues to show contempt towards his contractual obligations to the Marine Corps Reserve. His unwillingness to make up missed drills, the potential of future misconduct, and the unlikelyhood of his presence at future drills makes him an extreme liability to the morale and success of this unit. Private F_ has no future mobilization potential and does not serve as an asset to the unit. We mailed his letter of Notification, Acknowledgement of Rights form, and BCNR form on 14 January 2002. He did not respond within the twenty working day limit. Private F_ has no potential for future military service.” [Not signed]

021006:  Administrative Remarks: Applicant is eligible but not recommended for promotion to PFC for the Nov promotion quarter because of unsatisfactory participation, specifically failure to attend scheduled drills. [Applicant not available for signature].

021006:  Counseled for deficiencies in performance and conduct. [Unexcused absences from scheduled drills (6,7,8 Sep 02)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Applicant not available for signature].

030808:  SJA review determined the case sufficient in law and fact. [Not signed].

031207:  Counseled for deficiencies in performance and conduct. [Unexcused absences from scheduled drills (6 Dec 03)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

040712:  GCMCA, Commanding General, Headquarters, Fourth Force Service Support Group, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

040712:  Applicant notified by Commanding Officer, SupCo(-), 4 th SupBn, 4thFSSG, that he is discharged from the United States Marine Corps as of 2359, 1 July 2004 with a characterization of under other than honorable conditions.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040712 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. The Applicant claims that his discharge was improper due to the length of the time period between his award of nonjudicial punishment and his subsequent administrative separation. The separation process was in strict compliance with the Marine Corps Separation and Retirement Manual. The CO’s letter of notification of intended recommendation for discharge under other than honorable conditions, the Applicant’s Acknowledgement of Rights, and the BCNR/NDRB information enclosures were sent by certified mail to the Applicant on 20020114. The Applicant failed to acknowledge receipt of the certified mail within the 20-day time period specified in the notification letter. In accordance with the regulation, failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights, to include the right to consult with qualified counsel and the right to request a hearing before an administrative discharge board. If a board is waived, separation action should be completed within 15 days after the Marine received notification of separation. Failure to complete a separation action within the prescribed time in no way bars separation or effects characterization. Every effort should be made to meet the established goal. In this case, the Applicant missed drills from December 2001 – October 2002. The Applicant was notified of his missed drills by certified mail (3 occasions) and by phone calls (5 occasions) to his residence; the Applicant did not respond to any of these attempts to contact him. 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.

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 14 retention warnings, a Competency Review Board for failure to attend scheduled drills, and a nonjudicial punishment proceeding for violation of Article112a (wrongful use of a controlled substance) 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.

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. 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.

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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