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USMC | DRB | 2005_Marine | MD0501092
Original file (MD0501092.rtf) Auto-classification: Denied


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

ex-PVT, USMCR
Docket No. MD05-01092

Applicant’s Request
The application for discharge review was received on 20050616. The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051117. After a thorough review of the available 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 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:

“REQUEST TO HAVE MY RECORD UPGRADED IN ORDER TO RE JOIN THE MARINES. I WAS YOUNG AND IMMATURE WHEN I FIRST JOINED THE MARINES. IT IS IMPORTANT FOR ME TO HAVE MY DISCHARGE UPGRADED IN ORDER TO FINISH WHAT I STARTED.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
Character Reference ltr from M_ J. F_, Clinton Police Department, dtd May 20, 2005
Character Reference ltr from G_ M. G_, Superintendent of Schools, dtd April 14, 2005
Character Reference ltr from A_ U_ Jr., Site Supervisor, Albro-Clinton, Inc., dtd April 28, 2005
Department of Veterans’ Service ltr from R_ N. V_, Director, dtd June 9, 2005

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 20010717             Date of Discharge: 20021206

 Length of Service (years, months, days):

 Active: 00 05 26
         Inactive: 00 10 23

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

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 8

 Education Level: 12                                 AFQT: 82

 Highest Rank: PVT                                   MOS: 9900

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (2)*                               Conduct: 3.9 (2)*

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

*Extracted from CO’s Administrative Separation letter dated 21 October 2002.


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 :

010716:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

 020610:  Applicant reported for initial tour of active duty for training.
020925:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 020919, tested positive for cocaine.
021001:  Battalion NJP for violation of UCMJ, Article 112a:
 Specification: In that Private T_, A_ D. (Applicant), U.S. Marine Corps, SACo, Headquarters and Support Battalion, School of Infantry, Training Command, Camp Lejeune, did, on or between 06 Sept 02 – 09 Sept 02, wrongfully used cocaine, a schedule I controlled substance.
         Award: Forfeiture of $552.00 pay per month for 2 months, restriction and extra duty for 45 days. Not appealed.

021017:  Voluntary Written Statement: Applicant admitted that while intoxicated he used cocaine at a party. Applicant requested to be retained in the Marine Corps.
021021:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct based on drug use. The factual basis for this recommendation was the Applicant’s use of cocaine as identified by positive urinalysis test results, a violation of Article 112a.
021021:  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.
         Applicant elected to submit written statements in rebuttal to proposed separation.

021021:  Commanding Officer, Headquarters and Support Battalion, School of Infantry, Training Command, Camp Lejeune, via Commanding Officer, School of Infantry, Training Command, Camp Lejeune, recommended to Commanding General, Marine Corps Base, Camp Lejeune, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: “Pvt T_ (Applicant) has demonstrated a blatant disregard for the Marine Corps’ policy towards drug use and has shown definite lack of Honor, Courage, and Commitment by testing positive for cocaine. This Marine lacks the commitment to serve as a productive Maine. He is not willing to do whatever it takes to be retained, namely changing from reserves to active duty. Pvt T_ (Applicant) does not possess the discipline or remorse for continued service in the Marine Corps.”

021105:  Commanding Officer, School of Infantry, Camp Lejeune, recommended to Commanding General, Marine Corps Base, Camp Lejeune, that the Applicant be discharged under other than honorable conditions.
         Applicant tested positive for cocaine. Applicant is a reservist requesting retention. Commanding Officer’s comments: “Private T_ (Applicant) understands retention would be under a suspension of an other than honorable discharge for a period of 12 months. It was explained that my policy for recommendation for retention was reassignment to Infantry Training Battalion for further training, observation, assessment and drug screening, and change of componency to active duty in order that the period of suspension would be served under the same conditions. Private T_ (Applicant) refused reassignment to Infantry Training Battalion and change of componency.”

021206:  DD Form 214 states that Applicant was not available for signature.

Service Record Book contains a partial Administrative Discharge package.

 PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021206 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant desires a discharge upgrade to Honorable in order to reenter the Marine Corps. The Board recognizes the Applicant’s motivation to become a Marine again, yet it is worth reminding the Applicant that the factual basis for discharge was misconduct due to drug abuse (cocaine). This type of misconduct warrants mandatory processing for separation from service. Notwithstanding, the Applicant is advised that the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Since, this issue does not serve to provide a foundation upon which the Board can grant relief, relief on this basis is denied.

The Applicant implies that his service characterization of Under Other Than Honorable Conditions is inequitable given his youth and immature. The Board recognizes that serving in the Marine Corps is challenging. Our country is fortunate to have the many young men and women who are willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges. In fairness to those members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. After a thorough review, the Applicant’s records did not show that he was not responsible for his conduct and therefore should not be held accountable. Relief on this basis is denied.

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 four character references for consideration. 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, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle. At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Therefore, 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 .

D. 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.

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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