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USMC | DRB | 2005_Marine | MD0501088
Original file (MD0501088.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-PVT, USMC
Docket No. MD05-01088

Applicant’s Request
The application for discharge review was received on 20050614. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) the Narrative Reason for Separation be changed to “Something Good (If possible).” The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051102. 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 and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 Item 6. ISSUES:
“I would like to change my RE Code so I can reenlist into the Air Force.
I would like to do my part as a citizen helping out my country. I wanted to serve my 20 years, but as of now I can’t this is why I am writing to you requesting therefore for my RE code to change, so I can take my part in making my country safe. I also work at jobs that require everyone to take random drug screenings.”
Item 8. SUPPORTING DOCUMENTATION:

“I have attended & completed a drug class to show that I do not use drugs & that I have completed a class to prove that. The class that I have taken is about Alcohol & Drug education course, which explains how your Job, Family, Financial, is affected. How people get addicted & how much dosage can effect you. I haven’t taken any medication since this incident occured in 2004. I have learned my lesson & want to change my life. That is the reason for the drug class is my effort to get back in.”

Item 16. REMARK:

“The drug that was used was tylenol, Yes I take full responsibility for this, at the time I did not know there was prescription tylenol. Therefore that mistake I made I am well aware of now & would like the oppertunity to serve my country again. I am also not sure of what block to mark in box 5, so as long as this is approved Honorable or General Under Honorable Conditions is good. I Just want to get back in. I Thank you for your time, & would want my RE code eligable to Join the Air Force.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 1)
Applicant’s Separation/Travel Pay Certificate, dtd June 23, 2004
Certificate of Completion, Twelve Hour Drug and Alcohol Education Course, dtd May 28, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20031001 – 20031103      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20031104             Date of Discharge: 20040607

 Length of Service (years, months, days):

 Active: 00 07 04 (Does not exclude lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 20 days
         Confinement:              None

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 36

 Highest Rank: PVT                                   MOS: 9971

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Rifle Expert Badge


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 :

030703:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
040326:  Company NJP for violation of UCMJ, Article 86:
          Specification: Unauthorized absence from Stud Admin Co, SOI (W) did on or about 03 March 04/2000 absent himself from his appointed place of duty, Bravo Co, SOI (W) and did remain absent until on or about 22 March 04/2000.
         Award: Forfeiture of $278.00 pay per month for 1 months, restriction and extra duty for 14 days. Not appealed.

040329:  Counseling: Advised of deficiencies in performance and conduct. On or about 040303/2000 Applicant did absent himself from appointed place of duty and did remain absent until on or about 040322/2000. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
040407:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 040402, tested positive for codeine.

040412:  Applicant requested voluntary leave pending administrative separation proceedings.

040414:  Counseling: Advised of deficiencies in performance and conduct. Illegal drug involvement identified through illegal use of drugs: Codeine (30836ng). Necessary corrective actions explained and sources of assistance provided.

040414:  Applicant refused Medical Officer’s evaluation (MOE). Applicant advised of VA Alcohol and Drug treatment facility nearest his place of residence.
040415:  Battalion NJP for violation of UCMJ, Article 112a:
         Specification: Wrongful use of a controlled substance: to wit, codeine: 30,836 in his system: while attached to Stud Admin Co, SOI (W) on or about 30 March 04.
         Award: Forfeiture of $596.00 pay per month for 2 months, restriction and extra duty for 45 days. Not appealed.

040419:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was wrongful use of codeine.

040419:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040419:  Commanding Officer, Headquarters and Support Battalion, School of Infantry, Training Command, Camp Pendleton, CA, recommended to Commanding General, Marine Corps Base, Camp Pendleton, via the Commanding Officer, School of Infantry, Training Command, Camp Pendleton, CA, that the Applicant be discharged with an under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was Applicant’s wrongful use of codeine, which was later adjudicated at nonjudicial punishment. Commanding Officer’s comments: “His willful use of codeine is a direct violation of the Marine Corps’ policy on drug abuse and constitutes a disregard for authority and that policy. Through his actions, Private G_ (Applicant) has demonstrated that he no longer possesses the potential for continued honorable service in the Marine Corps.”

040420:  Commanding Officer, School of Infantry, Training Command, forwarded, Applicant’s discharge recommendation to the Commanding General, Marine Corps Base, Camp Pendleton, recommending that the Applicant be discharged with an under other than honorable conditions by reason of misconduct, specifically drug abuse.

040421:  Ordered to voluntary leave awaiting administrative separation review.

040427:  SJA review determined the case sufficient in law and fact.

040429:  GCMCA, Commanding General, Marine Corps Base, Camp Pendleton, advised the Commandant of the Marine Corps (MMSB_20), Headquarters, that the Applicant’s discharge was directed under other than honorable conditions by reason of misconduct due to drug abuse.

040607:  Applicant was not available signature on DD Form 214.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040607 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions. 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 (B and C).

The Applicant requests a Narrative Reason for Separation change to “something good.” Under its responsibility to examine the propriety and equity of the Applicant's discharge, the NDRB will change the reason for discharge if such a change is warranted. A review of the Applic ant’s records show:
•         Non-judicial punishment on 20040326 for violation of UCMJ Article 86 Unauthorized absence;
•         Retention warning entry on 20040329 for deficiencies in performance and conduct concerning unauthorized absence;
•         Counseling entry on 20040414 for deficiencies in performance and conduct concerning illegal use of drugs (codeine); and
•         Non-judicial punishment on 20040415 for violation of UCMJ Article 112a Wrongful use of a controlled substance (codeine).
 The summary of service clearly documents that drug abuse was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Therefore changing the Narrative Reason for Separation to “something good” would be inappropriate. Relief on this basis is denied.

The Applicant desires an RE code change in order to reenter the military. The Board recognizes the Applicant’s motivation to serve. However, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces, and therefore has no authority to change a reenlistment code. Reenlistment policy of the U.S. Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. Since t his issue does not serve to provide a foundation upon which the Board can grant relief, r elief on this basis is not warranted.

While 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 Marine Corps, the Board 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. The Applicant submitted a completion certificate for a twelve-hour drug and alcohol education course. The Applicant is advised that his efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities. At this time, there i s not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. And so, no relief is granted on this basis .

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. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective
01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.
B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

C. 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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