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

 ex-PVT, USMC
Docket No. MD05-00634

Applicant’s Request

The application for discharge review was received on 20050228.  The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050608.  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/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To whom it may concern:

I L_ L_ F_ (Applicant) Graduated from Hillcrest High School In Evergreen Alabama, on May 25, 1999.  I furthered my education to Alabama A&M in Huntsville Alabama.  There I took upon a major in Political Science, and my minor in Business Management.  Around the middle of February 2001, I decided to join the Army National Guard to help with my schooling because of financial problems that I were having.

I shipped to Basic Training on June 2, 2001.  Therefore I could be back in school for my fall semester of 2001.  I graduated from basic training on September 4, 2001. @ Fort Knox, KY.  I returned home and was to start back to school two weeks later and were to just do my monthly drills at my unit. 781st Transportation Georgiana Alabama.  Shortly after returning home Sadness stroke the whole world.  911 happen.

I decided right there that I wanted to go active duty.  I went and talked with my unit commander and he told me that I would have to wait 6 months before I could do anything like that.  After my 6 months were up I went and talked with an Army recruiter on compass and she told me she would get started on my paper work.  Almost 6 more months had past and she still hadn’t did anything because my unit wouldn’t sign off on my paper work.  I felt like if she can’t do it someone else would.

I went and talked with a Marine recruiter and he told me that it was just her sitting on her ass and not doing anything.  He also stated that he could have my paper work done and me shipped to Boot Camp in or about 2 to 3 weeks later.  He did just that.  I shipped to Paris Island, SC.  On October 7, 2002.  About 3 weeks before my graduation I received a Red Cross message.  My Drill Instructure read it to it to me and it stated that I had lost my brother in a car accident while traveling home from college.  It felt like someone had shooten me with an M16.  I had no joy to continue anything, but I knew I had come to far to quit now, and I knew that what my brother would have wanted.  I made a phone call home and talked with my family and told them that I wouldn’t be coming home to attend the funeral.

No one really could understand why, but that’s just what I did for the next 3 weeks I sucked it up and graduated from Boot Camp on February 7, 2003.  Everyone attended my graduation except my brother.  Upon graduation I were to get an extended stay at home and return to S.O.I. on March 15, 2003.  I did just that, but while at home for those 4 weeks times where harder than they had ever been for me.  My best supported of all wasn’t their anymore, my brother, the one that was by my side no matter what even when my parents thought I had than lost my mind to drop out of school and join the Marine.

While at home on boot leave I decided to smoke some Marijuana so that I could fail my urine test so that I could return home.  I had no desire to do anything with my life for a while.  Upon entering S.O.I. I told my Sgt. That was over me in receptionist that I had used marijuana while at home on boot leave, and that I was going to fail my urine test.  Well the next morning we went over and took our urine test and they told me that they were going to go ahead and let me start class with the rest of my fellow marines until the test sample camp back, only if I agreed.  I did just that.

My In structure could see that I was still having a hard time dealing with the loss of my brother, but he didn’t want me do give up because he seen one of the best marines in me.  I agreed with him that if my test results came back positive I would ask to be retained.  About a week before my class was to graduate I got my results back and they were positive.  When asked by my commander weather or not I would like to be retained I said no.  I still felt out of place in life.  I went against my promise to my Instructure.  I returned home around May 7, 2003.  I sat around and did nothing.  About 2 months had past and I was just lying across my bed one night and my brother paid me a visit and told me that it was O. K. to let go.  I had a life to live.

I had blamed myself so long for not going home to his funeral to say my last respect until he came and seen me that night and told me to let go.  I enrolled back into school the fall semester of 2003, and now hold a degree in Political Science and my minor in Business Management.  I am currently employed at Jim Peach Motors Monroeville, Alabama as a car salesman.

With all the blessings that I’ve been blessed with I’m still missing something.  That is my career in the U.S. Army.  Upon getting out of the Marines they discharged me with an OTHER THAN HORORABLE discharge.  This is my first step a recruiter gave me to do to get my discharged reversed.  So what I’m Asking Today is for the board to review my discharge and change my discharge to an Honorable discharge so that I may enter the Army and start my career were I want to be in life?

I thank you for your time today and ask for your help in helping me to do the right thing.

Sincerely:
	       L_ F_ (Applicant)”

Documentation

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

Letter from Commanding Office, School of Infantry, Administrative Separation
    Proceedings, dated March 28, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USANG		011016 - 021029	To enlist in USMC

Period of Service Under Review:

Date of Enlistment:  021030		Date of Discharge:  030416

Length of Service (years, months, days):

	Active:    00  05  17
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12+		AFQT:  39

Highest Rank:  Pvt			MOS:  9900

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6*			Conduct:  3.6

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, MRB

Days of Unauthorized Absence:  None

*Extracted from CO H&S Bn letter of 030325

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:

021017:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

030305:	NAVDRUGLAB Jacksonville FL, reported Applicant tested positive for use of marijuana.  [Extracted from CO, Headquarters & Support Battalion, School of Infantry, Camp Lejeune, NC letter of 030325.]

030317:	Counseled regarding deficiencies, specifically, the illegal use of marijuana as verified by the NAVDRUGLAB message R052004Z Mar 03.  Necessary corrective actions explained and sources of assistance identified.  Applicant advised that he was being processed for administrative separation.

030318:	NJP for violation of UCMJ, Article 112a:  Specification:  In that Private
L_ L. F_ (Applicant), U. S. Marine Corps, Golf Company, Marine Combat
Training Battalion, School of Infantry, Training Command, Camp Lejeune,
did, at undisclosed location, on or between 030124 and 030224,
wrongfully use Marijuana, a controlled substance.  Awarded forfeiture of
$575.00 per month for 2 months, restriction for 60 days.  Not appealed.

030324:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service is under other than honorable conditions by reason of misconduct due to drug abuse as evidence by positive urinalysis test results, a violation of Article 112a.

030324:	Applicant advised of rights and having elected not to consult 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.

030325:	Commanding Officer, Headquarters & Support Battalion, SOI, Camp Lejeune, NC recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the Applicant's use of marijuana as identified by NAVDRUGLAB Jacksonville, FL message 052004Z MAR 03.  Commanding officer’s comments: (verbatim):  Pvt F_ (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 marijuana.  Despite counseling by his Recruiter, Drill Instructors and a 1st Sgt from SOI, SNM used drugs while on Boot Camp leave.  He has proven to me that he does not possess the discipline for continued service in the Marine Corps.

030328:	Commanding Officer, SOI, Camp Lejeune, NC concurred with and forwarded the Battalion Commander’s recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

030409:	SJA review determined the case sufficient in law and fact.

030414:	GCMCA (Commanding General, Marine Corps Base, Camp Lejeune, NC) directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030416 under other than honorable conditions for misconduct due to drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1:  The Applicant contends that his misconduct, specifically his drug abuse (use), was the result of his losing focus and desire due to the loss of his brother to a car accident.  While the Applicant may feel that this loss mitigates his misconduct, the record clearly shows that the Applicant was responsible for his actions and willfully and negligently abused (used) illegal drugs.  The Applicant's misconduct is clearly documented by the positive results from the Naval Drug Laboratory in Jacksonville, FL and by the subsequent nonjudicial punishment (NJP) proceedings for violation of UCMJ Article 112a Wrongful use of controlled substance.  Further, the Applicant, on 030324, after acknowledging his understanding of the rights afforded to him as part of the administrative discharge process, elected to waive his right to an administrative discharge board.  The evidence of record does not show that the Applicant should not be held accountable for his actions.  Relief on this basis is denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety or inequity after a review of the Applicant’s case.  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 NDRB is authorized, however, 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 should 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.  The Applicant has not provided any documentation for the Board to consider.  Relief on this basis is denied at this time.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Marine Corps or any other of the Armed Forces, the Board 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 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 P1900.16F), effective 01 September 2001 until Present.

B.  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.

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.

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