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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-00818

Applicant’s Request

The application for discharge review was received on 20050407.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “RE Code.”  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051102.  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 and narrative reason for 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 and from an attached document/letter to the Board:

“I would like to re-enter the Marine Corps.”

“To:	Whom it May Concern

My name is J_ P. D_, I am a UNITED STATES MARINE.  That title means everything to me, its what my fathers sweat, bled, and fought for.  It’s a title that I sweat, bled, and fought for.  Ever since I was 5 years old, when I first put my fathers cammies on I knew what I was supposed to do in life, and that was to be a UNITED STATES MARINE, and I am.  I was young and immature when I went in at the age of 18.  I know there’s no excuse for my actions, but I have dealt with that.  I am a better person today because of yesterday.  I have gone to rehab on my own and I have a clean and sober life today.  I have waited for the right time to ask for your help in changing my discharge.  The only reason I would like to change my discharge is so I can carry out my mission in life, and that is to serve in the UNITED STATES MARINE CORPS.  I was wrong for taking cocaine, I tried it once and I will never do it again.  Being a Marine is the only thing I ever wanted, just like my dad.  I let a lot of people down in my short life, but my dad told me once “a Marine never quits”, and I don’t plan to quit.

The question you’re asking yourself is why should we overturn the OTH (other than honorable) to a honorable discharge?  I plan to better myself as well as other Marines in my unit, I am aware of signs of drug abuse I been there myself.  I know I’m a lifer, I really would love another chance to serve my country, but most of all my CORPS.

If given this chance I would be a model Marine and give nothing less than 110%.  I know I can’t expect to go back in, but I can pray and I wont quit.

[signed]
J. P. D____
UNITED STATES MARINE”

Applicant’s Remarks:  “I would also like for my Re-Entry Code to be changed to allow me to go back Active Duty in the Marine Corp”

Documentation

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

Letter from Mrs. A_ D_, undated (3 pgs)
Letter from J_ P. D_ III, CWO4, USMC, RET, dtd March 14, 2005
Letter from J_ D_, dtd March 20, 2005
Letter of Recommendation from B. L. J_, 1stLt USMC, dtd March 15, 2005
Letter from C_ P_, HMCM USN Fleet Marine Force Retired, undated
Letter from D_ E. J_, HMCS(FMF), USN, Ret, dtd March 8, 2005 (2 pgs)
Photograph of Marine

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20001017 – 20001127		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20001128		Date of Discharge:  20020131

Length of Service (years, months, days):

Active:    01  02  03  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  35

Highest Rank:  PFC				MOS:   0311 (8 mos) 8152 (6 mos)

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):  Rifle Sharpshooter Badge, Pistol Sharpshooter 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:

001003:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

001017:	Waivers granted for adjudicated law violations of serious offense(s) (district level) and marijuana drug involvement not considered a law violation.

010905:	NJP for violation of UCMJ, Article 92: On or about 0300, 18 Aug 01, did at 1st FASTCo, MCSFBn, Norfolk, Virginia, violate a lawful general regulation, to wit: COMNAVREDMIDLANT/SOPA (ADMIN) HRINST 5400.1 dtd 20 Mar 00, by consuming alcohol under the legal drinking age.
	Award:  Forfeiture of $521 per month for 2 months, restriction for 60 days, reduction to E-1.  Not appealed.

010905:	Counseling:  Advised of deficiencies in performance and conduct (NJP held on 010905 for violation(s) of Article 92 of the UCMJ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010905:	Acknowledged understanding of eligibility but not recommended for promotion to PFC for 6 months due to NJP held on 010905.  Applicant chose not to make a statement.

010921:	Applicant discharged from Addictions Rehabilitation Department as a result of noncompliance.  [Extracted from counseling entry dated 011114.]

011114:	Counseling:  Advised of deficiencies in performance and conduct (Your release from level III treatment at the Addictions Rehabilitation Department (ARD) on 21 Sept 2001.  You were discharged from treatment as a result of noncompliance with program rules and regulations.  Specifically, you were disruptive during classes, you displayed a poor attitude, and you were involved in a physical altercation with another service member attending said named course.)  Sources of assistance provided, advised being processed for administrative separation.
 
011214:	NJP for violation of UCMJ, Article 112a: On or about 4 Dec 01, wrongfully used a controlled substance to wit: Cocaine, identified through NAVDRUGLAB msg 111520Z Dec 01.
Award:  Forfeiture of $521 per month for 2 months, restriction for 60 days. Not appealed.

020102:	Applicant evaluated by substance abuse counselor.  [Extracted from counseling dated 020107.]

020107:	Counseling:  Advised of deficiencies in performance and conduct (Illegal drug involvement (Cocaine usage identified through urinalysis confirmed by Navy Drug Lab JAXFL msg 111520z Dec 01)).  Advised being processed for administrative separation.

020107:	Acknowledged understanding of eligibility but not recommended for promotion to PFC for 18 months due to positive confirmation of illegal drug usage.  Applicant chose not to make a statement.

020107:	Counseled concerning eligibility for substance abuse treatment.  Acknowledged that such treatment is available at the local Veterans Assistance (VA) Office closest to place of residence after separation.

020131:	DD214:  Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, board waived.

Service Record Book did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020131 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).

When a Marine’s service 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 two nonjudicial punishment proceedings for violations of Articles 92 and 112a of the UCMJ.  The Applicant’s violations of Articles 92 and 112a are considered serious offenses.  The Applicant was given a retention warning on 20010905 and discharged from Addictions Rehabilitation Department (ARD) Level III treatement as a result of noncompliance.  The Applicant’s discharge from ARD was due, in part, to a physical altercation with another service member enrolled in the program.  The Applicant’s conduct is considered a violation of the special consideration given the Applicant as evidenced by the Applicant’s enlistment waivers for adjudicated serious violations and marijuana drug involvement.  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.

The Applicant contends that he has a “clean and sober life” and that he has undergone rehabilitation.  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 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.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  Relief on the basis of post service conduct is not warranted.  

Regarding the Applicant’s request to change his RE-Code, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and the 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 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 and order/regulation and 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 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