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USMC | DRB | 2005_Marine | MD0501151
Original file (MD0501151.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-01151

Applicant’s Request
The application for discharge review was received on 20050629. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant designated American Legion as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060119. 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 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:

“My discharge was not improper, I was handed what I deserved. I popped on a urine test for smoking marijuana, 5 monograms overt the limit. I was going through a very hard time with the death of my father just before I popped dirty. People make mistakes, but most of the time they get second chances. I’m not just asking to have my discharge upgraded. I’m asking for a reentry code changed. I have a reentry code of RE-4B, and I’m asking for a reentry code that will let me back into the Marine Corps. I have my priorities straight now, and all I need is a second chance to prove it. I know that Recruiting is low, and every man counts. Please consider my request and I swear on my Fathers grave I will not let the Marine Corps down.”
Representative submitted no issues.


 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)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20010622 – 20010806               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010807             Date of Discharge: 20030731

 Length of Service (years, months, days):

 Active: 01 11 25
         Inactive: None

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

 Age at Entry: 19

 Years Contracted: 4

Education Level: 12                                 AFQT: 49

 Highest Rank: LCpl                                  MOS: 2141

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0*                                   Conduct: 3.9*

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

*[Proficiency and Conduct marks in service extracted from Officer in Charge, General Support Maintenance Platoon Ltr, dtd 9 Jun 03.]


 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 :

010620:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

010622:  Applicant granted drug waiver by RS Portsmouth CO level waiver.

020319:  NJP for violation of UCMJ, Article 92:
Specification: At AAS Bn, TrngCom, on or about 17 Mar 02, SNM did fail to obey an order or regulation by consuming alcohol while being under the age of 21.
Violation of UCMJ Article 123:
Specification: At AAS Bn, TrngCom, SNM did commit forgery by altering his official state identification.
         Award: Forfeiture of $289.00 pay per month for 1 month, restriction and extra duty for 14 days. Not appealed.

030110:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 030107, tested positive for THC.
030523:  NJP for violation of UCMJ, Article 112a: Wrongfully use marijuana.
 Award: Forfeiture of $645.00 pay per month for 2 months, restriction and extra duty for 45 days (suspended for 6 months), reduction to E-2. Not appealed.

 030528:  Substance Abuse Rehabilitation Program, Naval Hospital Camp Lejeune, NC. Substance Abuse Report: Diagnosis: Alcohol Dependence
         Recommendations: (1) Intensive Outpatient Treatment, (2) Weekly visits with Unit SACO until treatment, (3) Individual should be held strictly accountable for their actions.

030610:  Counseling: Advised of deficiencies in performance and conduct (Violation of Article 112a.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.
030714:  Applicant advised of rights and having consulted with counsel, elected to waive all rights.

030714:  Commanding Officer, 2d Maintenance Battalion, recommended to Commanding Officer, 2d Force Service Support Group that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.

030716:  SJA review determined the case sufficient in law and fact.

030721:  Commander, 2d Force Service Support Group, advised the Commandant of the Marine Corps, Headquarters that the Applicant will be discharged under other than honorable conditions by reason of misconduct due to drug abuse.

 Service Record Book contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030731 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).

 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 2 nonjudicial punishment proceedings for violations of Articles 92, 112a, and 123 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.

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.

The Applicant states that he used drugs and was positive on a urinalysis because he was “going through a very hard time” with the death of his father. While he may feel that his father’s death was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. 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. Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.



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 additional evidence related to this discharge. 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, Para 211, Regularity of Government Affairs .

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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