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USMC | DRB | 2005_Marine | MD0500611
Original file (MD0500611.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00611

Applicant’s Request
The application for discharge review was received on 20050216. 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 review. The Applicant listed a civilian counsel as the representative on the DD Form 293. Subsequent to the application, the civilian counsel was removed as the representative.

Decision

A documentary review was conducted in Washington, D.C. on 20050629. 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. “Since being discharged other than honorably from the United States Marine Corps, I have come to regretful terms on the means of my abrupt departure. I let myself, my family, and most significantly let my comrades of the corps down. With such a discharge I have narrowed many paths in life. I have aspirations of going back to school by assistance of loans which is difficult considering the circumstances. I have since been working menial type jobs, times are hard getting a job upper level job with such a blemish on my record. I throw myself upon your mercy to upgrade from other than honorable to at best a general under honorable conditions. This request comes proclaiming a clean slate since my military stay. Members of the Board I can only wish that you can restore my place in society. Please consider these issues to be valid. Thank you.”

Additional issues submitted by the Applicant subsequent to the application:

“Issue 1: My inability to get a good job has been affected by my discharge status. I have been declined on job offers because of this. I have a family of two children a good paying job would help more than the menial assignments handled.

Issue 2: I have gone to drug and alcohol treatment facility for the drug problem I was told that I was in regression that did receive a counseling on drinking. I am no longer having a problem w/drinking just finding a job.

Issue 3: I have tried reenlist in the US National Guard but my reentry code will not allow me to do so. I attempted to join w/help from Sgt. C_ of Corry, PA based Natl Guard. He presently still has my package from my discharge.

Issue 4: Ultimally I regret the actions that led up to my discharge. My actions were undisciplined, dangerous, and immature. Which is very different from my character now. I have enclosed a character reference from a former service member and a friend of my family as well. He can vouch that my upbringing and overall moral standard is satisfactory.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Recommendation for relicensing, South Carolina Interstate ADSAP Office, dated October 15, 2003
Letter of rejection for employment from R_ A. C_, Cummins Engines, Inc., dated April 17, 2002
Letter of recommendation from E_ H. E_, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR (Dep)             990915 - 990920  COG

 Period of Service Under Review :
Date of Enlistment: 990921               Date of Discharge: 001005

 Length of Service (years, months, days):

         Active: 01 00 15
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 15                        AFQT: 79

 Highest Rank: Pvt                          MOS: 0151

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (1)                       Conduct: 4.2 (1)

 Military Decorations: None

 Unit/Campaign/Service Awards: RMB

 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 :

000125:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 000111, tested positive for cocaine.

 000203:  NJP for violation of UCMJ, Article 112a:
 Specification: Wrongfully use cocaine during Jan00-Feb00.
Awarded forfeiture of $502.00 per month for 2 months, restriction and extra duties for 45 days. Not appealed.
000321:  Applicant missed drug screening appointment.

 000406:  Clinical Director ATF, Camp Lejeune, found Applicant drug dependent, in early, full remission and recommended administrative separation. Director further found that no treatment was needed and that the Applicant was psychologically fit for full duty.
000413:  Applicant informed eligible but not recommended for promotion to PFC due to NJP.

 000502:  NJP for violation of UCMJ, Article 92:
 Specification: Violate P11101.5C, by having a female in BEQ room on 0535, 000419.
Awarded forfeiture of $250.00 per month for 2 months, restriction and extra duties for 15 days. Forfeiture for 1 month suspended for 6 months. Not appealed.
000502:  Counseled for deficiencies in performance and conduct. [Illegal drug involvement, cocaine usage identified through urinalysis confirmed by NAVDRUGLAB Jacksonville, FL message R 252153Z Jan 00 and recent violation of CJAO p11101.5C.] Necessary corrective actions explained, sources of assistance provided.
000502:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and pattern of misconduct.
000504:  Applicant advised of rights and having not consulted with certified counsel, elected to appear before an Administrative Discharge Board.
000512:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and a pattern of misconduct. The factual basis for this recommendation was the Applicant’s incident of illegal drug use as evidenced by NAVDRUGLAB Jacksonville FL message 252153Z Jan 00 and nonjudicial punishment of 000502.

 000810:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct and drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

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

000926:  GCMCA [Commander, Marine Corps Base, Camp Lejeune, NC] 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 20001005 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. Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. 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. T he Applicant’s service was marred by wrongful drug use and an orders violation. This misconduct resulted in two nonjudicial punishment proceedings for violations of UCMJ Articles 92 and 112a. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 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 any documentation for the Board to consider. Relief denied.

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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