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

 ex-Pvt, USMC
Docket No. MD05-00549

Applicant’s Request

The application for discharge review was received on 20050203.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “Administrative.”  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050519.  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 the narrative reason shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I am requesting an upgrade of my discharge and also a change in my re-enlistment code because I want to re-enlist in the military to help fight the war on terror and honorably serve our nation.  My discharge was inequitable because it was based on one isolated incident in 25 months of service with no other adverse action.
My discharge was improper because I was separated administratively, whereas my court-martial ordered my retention in the military.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (2)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USMCR(J)		960624 - 961007	COG

Period of Service Under Review:

Date of Enlistment:  961008		Date of Discharge:  980727

Length of Service (years, months, days):

	Active:    01  09  20
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  84

Highest Rank:  PFC			MOS:  3533

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (5)			Conduct:  3.8 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  REB, MUC

Days of Unauthorized Absence:  10

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

960621:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

971107:	Counseled for deficiencies in performance and conduct.  [Frequent involvement of a discreditable nature, which have resulted in violations of the UCMJ, to wit: On 970917 0530-0550 and 970918 0500-0615.  SNM was in violation of Article 86 of the UCMJ in that SNM was UA for morning formation.  SNM has been counseled on several occasions regarding his deficiency.  SNM has been given EMI to try and correct his deficiency but shows no interest in improving himself.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980110:	Counseled for deficiencies in performance and conduct.  [Frequent involvement of a discreditable nature, which have resulted in a violations of the UCMJ, to wit: on or about 1000, 970730, PFC C_ (Applicant) was involved in a vehicle accident, due to his lack of attention to detail and unsafe driving practices.  He exceeded the vehicle speed limit by 5 MPH, and did not leave enough distance between him and the vehicle in front of him, to stop in the wet road conditions.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980220:	Counseled for deficiencies in performance and conduct.  [Frequent involvement of a discreditable nature which have resulted in a violations of the UCMJ, to wit: IAW MCO P1070.12 you received semiannual conduct marks of 3.9, you have been counseled in your use of poor judgment and being UA.  These marks are warranted due to your conduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980305:	Counseled for deficiencies in performance and conduct.  [Frequent involvement of a discreditable nature, which have resulted in a violation of the UCMJ, to wit: SNM having been placed on base revoke 971125.  You will not drive aboard Camp Lejeune, NC or surrounding military facilities in a POV.  You are on based revoke until 980524.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980413:	Applicant to unauthorized absence 1201, 980413.

980413:	Applicant declared a deserter.

980424:	Applicant from unauthorized absence 0130, 980424 (10 days/apprehended).

980427:	Applicant found fit for confinement.  Applicant to confinement.

980519:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence 980413 - 980423.
	Charge II: violation of the UCMJ, Article 112a:
	Specification: Wrongful use of cocaine.
	Findings: to Charge I and II, specifications thereunder, guilty.
	Sentence: Confinement for 75 days, forfeiture of $600 per month for 3 months, restriction for 60 days, reduction to E-1.
	CA:  Not found in service record.

980605:	Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct.  The least favorable characterization of service which he may receive is under other than honorable conditions.  The Commanding Officer recommends that the Applicant receive an Under Other Than Honorable Conditions discharge.

980605:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  CO’s comments: “The factual basis for this recommendation was Applicant’s numerous counseling entries and conviction at a special court-martial for violation of Article 86, absenting himself from his unit for 11 days, and 112a, wrongful use of cocaine.  He was awarded a court-martial based upon his statement that he had used cocaine to get out of the Marine Corps.  He then went UA which was terminated only by apprehension.  Incredibly, the military judge did not award the bad conduct discharge I sought.  Administrative separation for a pattern of misconduct is, therefore, the only practical avenue remaining to separate this Marine under other than honorable conditions.” 

980612:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980713:	Applicant signed statement of understanding of treatment for substance abuse at VA Medical Center after his discharge.

980714:	SJA review determined the case sufficient in law and fact.

980720:	GCMCA, Commanding General, 2d Marine Division, II Marine Expeditionary Force, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980727 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.   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.  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.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The Applicant states his discharge was based on one isolated incident in “25 months.” 
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 4 retention warnings and a special court-martial.   The special court-martial found the Applicant guilty of violations of Articles 86 (UA for 10 days) and 112a (wrongful use of cocaine) of the UCMJ.  The violation of Articles 112a and 86 substantiates the misconduct for which he was separated.  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 and was on unauthorized absence.  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.  The summary of service clearly documents that pattern of misconduct was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider the Applicant’s discharge proper and equitable.  The Applicant contends that his discharge was improper because he was administratively separated “whereas my court-martial ordered my retention in the military”.   For the Applicant’s information, the special court-martial did not order his retention in the military and does not have the authority to do so.   Accordingly, relief on this basis 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.  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.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 31 Aug 01. 

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 112a, wrongful use of a controlled substance.

C.  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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  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