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USMC | DRB | 2006_Marine | MD0600139
Original file (MD0600139.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. MD06-00139

Applicant ’s Request
The application for discharge review was received on 20051017 . 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 20060824 . 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:
“ I would like to opportunity to reenlist in order to prove myself and to support my nation. I have learned my lesson and want desperately to be able to be a productive member of my nation. My error in judgment had scarred my otherwise exemplarity record. ”
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20020610 - 20030601       COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20030602              Date of Discharge: 20040421

Length of Service (years, months, days):

 Active: 00 10 20 (Does not exclude lost time)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              2 4 day s

Age at Entry: 18
Years Contracted: 4
Education Level: 12                                 AFQT: 51

Highest Rank: PFC                                    MOS: 2100

Final Enlisted Performance Evaluation Averages (number of marks):

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

* Not Available


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 :

020607:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
020610 :  Pre-service waiver for pre-service drug use (marijuana) granted.
040204:  NAVDRUGLAB, San Diego, CA, reported Applicant ’s urine sample, received 040128, tested positive for amphetamine and methamphetamine.

 040209:  Counseling: Advised of deficiencies in performance and conduct ( Illegal drug involvement, amphetamine/methamphetamine usage as identified through urinalysis and confirmed by NavDrugLab San Diego msg 042213Z Feb 04. ), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge.
040219 :  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 112a (2 specs): Specification 1: In that Private First Class J_ S. N_( Applicant ), U.S. Marine Corps, on active duty, did, at an unknown location, on or about 20 January 2004, wrongfully use amphetamine. Specification 2: In that Private First Class J_ S. N_, U.S. Marine Corps, on active duty, did, at an unknown location, on or about 20 January 2004, wrongfully use methamphetamine.

040221:  Applicant found qualified for separation.

 040304 :  Charges referred to summary court-martial.

040305:  Summary Court-Martial.
          Charge I : violation of the UCMJ, Article 112a :
          Specification 1: On or about 20 January 2004, wrongfully use amphetamine.
         Specification 2: On or about 20 January 2004, wrongfully use methamphetamine.
          To Charge I: Guilty.
          Finding: Specification I, Charge I: Not Guilty. Specification II, Charge I: Guilty.
         Sentence: Forfeiture of $795.00, confinement for 30 days, reduced to E-1.
          CA action 040305 : Sentence approved and ordered executed.
040305:  Applicant to confinement.
040308 :  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug use. The factual basis for this recommendation was testing positive for controlled substance to wit: Methamphetamine as confirmed by NAVDRUGLAB Msg dtd 042213Z Feb 04. Summary Court-Martial held on 5 Mar 2004 for violation of Article 112a (Drug use). Applicant informed the least favorable character of service possible was under other than honorable conditions.

040309 :  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040309 :  Commanding Officer, School Company, Assault Amphibian School Battalion, Training Command, Camp Pendleton, CA , recommended Applicant ’s discharge under ot her than honorable conditions by reason of misconduct due to drug abuse.

040309 :  Commanding Officer, Assault Amphibian School Battalion, Training Command, Camp Pendleton, CA , recommended Applicant ’s discharge u nder other than honorable conditions by reason of wrongful use of a controlled substance .
040316:  Consolidated Substance Abuse Counseling Center, Camp Pendleton, CA: Applicant ref used medical officer evaluation and informed of availability of alcohol and drug treatment program after discharge.

040329:  Applicant from confinement.

 040408:  SJA review determined the case sufficient in law and fact.

040409:  NJP for violation of UCMJ, Article 92: At AAS Bn, TrngCmd, Camp Pendleton, CA on or about 3 April 04, SNM failed to obey an order or regulation by consuming alcohol while under the legal drinking age of 21.
         Award: Forfeiture of $ 278 per month for 1 month, restriction and extra duty for 14 days. Not appealed.
040412:  Counseling: Advised of deficiencies in performance and conduct ( Company NJP given on 9 April 2004, Article 92 by consuming alcohol under the legal drinking age of 21. Alcohol related incident on 3 April 2004. Specifically drinking alcohol while under the legal age of 21. ), necessary corrective actions explained and sources of assistance provided.
040419 :  GCMCA, Commanding General, Marine Corps Base, Camp Pendleton, CA , directed the Applicant 's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040421 by reason of misconduct due to drug abuse (A and B ) 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 ( C and D ). The Board presumed regularity in the conduct of governmental affairs ( E ).

The Applicant implies his discharge was inequitable because his “error in judgement [sic] had scarred [his] otherwise exemplarity [sic] record.” 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 less than eleven months of service is marred by nonjudicial punishment proceedings for violations of Articles 92 and 112a of the UCMJ. Violations of Articles 92 and 112a of the UCMJ are serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction by a special or general court-martial. The Applicant’s conduct is a violation of the special consideration given the Applicant at the time of his waivered enlistment. 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 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. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

The Applicant requests that his discharge be changed in order to facilitate the Applicant’s reenlistment. T he Board has no authority to upgrade a discharge for the sole purpose of enhancing employment, educational or reenlistment opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. The Board discovered no impropriety after a review of Applicant’s case. Regarding the Applicant’s desire to reenlist, 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. Relief is not warranted.

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. 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. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, failure to obey order/regulation or Article 112a, wrongful use of controlled substance.

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 .

E . 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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