ex-, USMC

                  Current Discharge and Applicant’s Request

Application Received:  20090317
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge:  MARCORSEPMAN

Applicant’s Request:  Characterization change to:
                   Narrative Reason change to:

                             Summary of Service

Prior Service:
Inactive:   USMCR (DEP)      20020612 - 20030608   Active:

Period of Service Under Review:
Date of Enlistment:  20030609     Age at Enlistment:
Period of Enlistment:   Years   Months
Date of Discharge:  20040326 Highest Rank:
Length of Service:    Year(s)    Month(s)  18  Day(s)
Education Level:       AFQT:  45
MOS:  0331
Proficiency/Conduct Marks (# of occasions):   () /  ()   Fitness Reports:

Awards and Decorations (per DD 214):    Rifle

Periods of UA/CONF:

NJP:
    - 20040120:  Article 112a (Wrongfully use marijuana)
      Awarded:     Suspended:


SCM:

SPCM:

CC:

Retention Warning Counseling:


    - 20040129:  For illegal drug involvement (THC), identified through the
             NAVDRUGLAB message R091050 JAN O4

                    Types of Documents Submitted/reviewed

Related to Military Service:
              DD 214:                                    Service/Medical
Record:             Other Records:

Related to Post-Service Period:
      Employment:                 Finances:
Education/Training:
      Health/Medical Records:           Substance Abuse:
Criminal Records:
      Family/Personal Status:           Community Service:
References:
              Additional Statements:
                             From Applicant:       From Representation:
      From Congress member:

                    Other Documentation:

                          Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F),
effective 1 September 2001 until Present, Paragraph 6210, MISCONDUCT, DRUG
ABUSE.

B.  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 V, Para 502, Propriety and Para 503,
Equity.




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

                             Applicant’s Issues

1.  Nondecisional issue.  Applicant would like to reenlist in the military.
2.  Decisional issue.  Applicant claims he was not properly counseled by
his commanding officer prior to his discharge.
3.  Decisional issue.  Applicant claims his performance was higher than his
command reported as supported by his comparative assessment profile scores.
4.  Decisional issue.  Applicant has matured and would like another chance.


                                  Decision


Date:  20090917              Location: Washington D.C.
Representation: none

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

                                 Discussion

The NDRB, under its responsibility to examine the propriety and equity of
an Applicant’s discharge, is authorized to change the character of service
and the reason for discharge if such change is warranted.  In reviewing
discharges, the Board presumes regularity in the conduct of Government
affairs unless there is substantial credible evidence to rebut the
presumption, to include evidence submitted by the Applicant.  The
Applicant’s record of service reflects one Non-judicial punishment (NJP)
for violation of the UCMJ Article 112a, (wrongful use of marijuana).  The
Applicant also had a pre-service drug waiver for using marijuana (the
number ten times was entered on his enlistment document, but crossed out)
prior to entering the Marine Corps, and acknowledged his complete
understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on
 January 8, 2001.  Based on the offense committed, processing for
administrative separation is mandatory.  When processed for administrative
separation, the Applicant waived his right to consult with qualified
counsel, to submit a written statement, and to request an administrative
discharge board.

Issue 1:  (Nondecisional) The Applicant wants to reenlist in the military.
The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement
into the Navy, Marine Corps, or any other branch of the Armed Forces, and
is not authorized to change a reenlistment code.  Only the Board for
Correction of Naval Records (BCNR) can make changes to reenlistment codes.
Additionally, the NDRB has no authority to upgrade a discharge for the sole
purpose of enhancing reenlistment opportunities.  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.

Issue 2:  () (Decisional) .  The Applicant claims he was not properly
counseled prior to his discharge.  On June 12, 2002 while in the Delayed
Entry Program, the Applicant signed a STATEMENT OF UNDERSTANDING MARINE
CORPS POLICY CONCERNING ILLEGAL DRUG USE.  This statement clearly states
the USMC policy on distribution, possession or use of illegal drugs.  The
Applicant acknowledged illegal drug use would not be tolerated in the USMC
and if he tested positive for any illegal drug, he would be subject to an
administrative discharge and possible court-martial.  There are no other
counseling requirements.

Issue 3:  () (Decisional)  RELIEF NOT WARRANTED.  The Applicant claims his
conduct while on active duty was better than the rating he received from
his commanding officer.  Illegal drug use is contrary to the standards
expected of all Marines regardless of rank or length of service.  As a
result of his NJP for violation of Article 112a, he received Proficiency
and Conduct marks of 2.0 and 3.0 respectively, which are appropriate for
his offense.  His enlistment Pro/Con marks average of 3.3/3.5 reflect his
conduct both before and after his NJP conviction and are in keeping with
USMC performance criteria.

Issue 4. (Equity) (Decisional)  RELIEF NOT WARRANTED.  The Applicant states
he has matured since he used illegal drugs and would like another chance to
serve in the military.  While he may feel this 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 does
not demonstrate the Applicant was not responsible for his conduct or that
he should not be held accountable for his actions.  When a Marine’s service
has been honest and faithful, it is appropriate to characterize that
service under honorable conditions.  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.  Despite a Marine’s previous record of
noteworthy service, use of illegal drugs is grounds for a punitive
discharge.

Besides the Applicant's statement on the DD Form 293, he failed to provide
any additional documentation and evidence on his behalf to support a post-
service conduct review.  The Applicant's statements alone, without
sufficient documentary evidence, are not enough to form a basis of relief.
On page 4, Item 8 in the instructions for completion of DD Form 293, the
Applicant is notified to submit evidence "which substantiate or relates
directly to your issues in Item 6" (Issues: Why an upgrade or change is
requested and justification for the request).  Additionally, upon receipt
of the Applicant's DD Form 293, the NDRB mails an acceptance letter that
covers the submission of additional documents in paragraph 3, Submission of
Evidence, and in the last section on page 4, Information Pertaining to a
Review Based Upon Post-Service Conduct.  However, even if the Applicant
could have produced additional evidence to support a review based on his
post-service conduct, the Applicant must have a full understanding that
post-service conduct alone does not guarantee an upgrade.

Summary:  After a thorough review of the available evidence, to include the
Applicant’s summary of service, service record entries, discharge process
and evidence submitted by the Applicant, the Board found   Therefore, the
awarded characterization of service shall remain, Under Other Than
Honorable Conditions, and the narrative reason for separation shall remain
Misconduct ( Drug Abuse).

The Applicant remains eligible for a personal appearance hearing for a
period of fifteen years from March 26, 2004—his date of discharge.  The
Applicant is directed to the Addendum, specifically the paragraphs titled
Additional Reviews, Automatic Upgrades, and Post-Service Conduct.


                  ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction
1332.28, you may submit a complaint in accordance with Enclosure (5) of
that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP,
The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of
the Instruction 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 Instruction
1332.28 and other Decisional Documents by going online at
“http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are
eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years,
has already been granted a personal appearance hearing or has otherwise
exhausted his opportunities before the NDRB, the Applicant may petition the
Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC
20370-5100 for further review.

Service Benefits:  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.

Employment/Educational Opportunities:  The NDRB has no authority to upgrade
a discharge for the sole purpose of enhancing employment or educational
opportunities.  Regulations limit the NDRB’s review to a determination of
the propriety and equity of the discharge.

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over
reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any
other of the Armed Forces, the NDRB is not authorized to change a
reenlistment code.  Only the Board for Correction of Naval Records (BCNR)
can make changes to reenlistment codes.  Additionally, the NDRB has no
authority to upgrade a discharge for the sole purpose of enhancing
reenlistment opportunities.  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.

Medical Conditions and Misconduct:  DoD disability regulations do not
preclude a disciplinary separation.  Appropriate regulations stipulate that
separations for misconduct take precedence over potential separations for
other reasons.  Whenever a member is being processed through the Physical
Evaluation Board, and subsequently is processed for an administrative
involuntary separation or is referred to a court-martial for misconduct,
the disability evaluation is suspended.  The Physical Evaluation Board case
remains in suspense pending the outcome of the non-disability proceedings.
If the action includes either a punitive or administrative discharge for
misconduct, the medical board report is filed in the member’s terminated
health record.  Additionally, the NDRB does not have the authority to
change a narrative reason for separation to one indicating a medical
disability or other medical related reasons.”  Only the Board for
Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 may 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.

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and
material facts stated in a court-martial specification are presumed by the
NDRB to be established facts, issues relating to the Applicant’s innocence
of charges for which he was found guilty cannot form a basis for relief.
With respect to a discharge adjudged by a special court-martial, the action
of the NDRB is restricted to upgrades based on clemency.  Clemency is an
act of leniency that reduces the severity of the punishment imposed.  The
NDRB does not have the jurisdictional authority to review a discharge or
dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB 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