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

 ex-PVT, USMC
Docket No. MD05-00922

Applicant’s Request

The application for discharge review was received on 20050503.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  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 20050831.  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:

“Dear Sirs, Madams:
I have come to the conclusion that I made a big mistake, and now I am accepting the consequences.  The Marine Corps discharged me under other than honorable conditions.  I have been talking to a Marine Corps Reserve recruiter, and he informs me that if I could get my discharge upgraded to general under honorable conditions, I could enter the Marine Corps Reserve.  At the time of my discharge, my Commanding Officer told me that I was a good Marine, and that he was going to try to retain me.  Even though he was unsuccessful, he still let me graduate from my MOS school.  This was a measure of his confidence in me.  He then sent me through a drug rehabilitation program, which I successfully completed.  I might mention at this time, that my experience with cocaine was limited to one time only, when I foolishly took it to impress a girl who offered it to me, who I had met only that night, in Richmond VA, on weekend liberty.  It goes without saying that I have never seen that girl again, nor ever before or since taken any illegal drugs.  Through reading this statement I hope that you realize that I regret my mistakes, and that you would consider upgrading my discharge.  Thank you for your time, and may God bless you.

Respectfully submitted,
[signed]  J_ M. R_ (Applicant)”

Documentation

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

Letter from Kenner Army Health Clinic Community Counseling Center, L_ C. K_, LCSW, Counselor and P_ P. K_ LCSW, Clinical Director, dated February 27, 2003
Letter of recommendation from Sgt M_ A. D_, USMC, dated March 14, 2003
Letter of recommendation from R_ R_, undated
Letter of recommendation from R_ R_, dated February 25, 2004
Diploma from Quartermaster School, Fort Lee, VA, for Food Service Specialist Course 800-92G10, dated December 13, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		011203 - 020512	COG

Period of Service Under Review:

Date of Enlistment:  020513		Date of Discharge:  030314

Length of Service (years, months, days):

	Active:    00  10  01
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  36

Highest Rank:  Pvt			MOS:  3381

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.8(1)			Conduct:  3.9(1)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, MRB

Days of Unauthorized Absence:  None

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:

011127:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

021025:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 021022, tested positive for cocaine.

021031	NJP for violation of UCMJ, Article 112a:  In that SNM had a positive urine sample (Cocaine 154).
Awarded forfeiture of $500.00 pay per month for 2 months (suspended for 6 months), restriction and extra duties for 45 days.  Not appealed.

021031:	Counseled regarding deficiencies, [Violation of Article 112a, positive urine sample (cocaine)].  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.  Applicant chose not to make a statement.

021127:	Evaluation done by the Army Substance Abuse Program (ASAP) at Kenner Army Health Clinic Community Counseling Center:  Applicant was referred by Command after testing positive for cocaine.
	Recommendation:  
Education classes – three classes
Weekly group counseling
Alcoholic Anonymous meetings – once weekly
Cocaine Anonymous meetings – one meeting
Evaluation by clinical consultant
Unannounced/random urinalysis
Unannounced/random breathalyzers
	Assessment:  Pvt R_ does not indicate regular use of cocaine.

030110:	Applicant notified of intended recommendation for discharge under other than honorable conditions with a one-year suspension by reason of misconduct due to drug abuse.  The least favorable characterization possible is under other than honorable conditions.  The factual basis for this recommendation was a positive urine sample reported by NAVDRUGLAB MSG R252039Z OCT 02 for Cocaine: 154.

030113:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and the right to submit a statement of rebuttal.

030122:	Commanding Officer, Marine Corps Detachment, U. S. Army Quartermaster Center and School, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse with a one-year suspension.  Commanding Officer’s comments (verbatim):  “Private R_ (Applicant) has knowingly and willingly failed to comply with the Marine Corps standards on using and possessing Cocaine.  Private R_ (Applicant) intentionally violated the honor and commitment that is required to be maintained by all Marines worldwide.  I have spoke to this Marine, and he has a sincere desire to remain on active duty.  He has completed his MOS school and is ready to be assigned to the Fleet Marine Force.  He has been counseled and understands that he will be expeditious separation if he fails to uphold the Marine Corps standards during the one-year suspension, if granted.”

030212:	SJA review determined the case sufficient in law and fact.  SJA did not concur with the recommendation that discharge be suspended.  

030220:	Commanding General, Training Command (C 47), Quantico, VA, advised the Commandant of the Marine Corps (MMSB), that Applicant’s discharge was directed under other than honorable conditions by reason of misconduct due to drug abuse.

030227:	Evaluation Follow-Up from Kenner Army Health Clinic Community Counseling Center ltr states that the Applicant completed the treatment program.  
[Extracted from documentation provided by Applicant].

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030314 under other than honorable conditions for misconduct due to drug abuse (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, to include documents provided by the Applicant, the Board found that the discharge was proper and equitable (B and C).

The Applicant contends that he has never done drugs before or since the incident that precipitated his discharge, that his Commanding Officer tried to retain him and informed him he was a “good Marine.”  Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  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 following is provided for the edification of the Applicant.  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 denied.

The following is provided for the edification of the Applicant.  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.  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 V, Para 502, Propriety.

C.  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