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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-01427

Applicant’s Request

The application for discharge review was received on 20050818.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  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 20060524.  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 as a bad conduct discharge by reason of court-marital.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I hope to receive a better discharge, and reenlistment code.  So I can enlist in the Army and serve my country with better.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19940426 – 19940426		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19940427		Date of Discharge:  19971211

Length of Service (years, months, days):

Active:    03  05  03  (excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  72

Age at Entry:  23

Years Contracted:  4 

Education Level:  10				AFQT:  54

Highest Rank:  PFC				MOS:  3521

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (7) 			Conduct:  3.9 (7) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Rifle Marksmanship Badge, Certificate of Commendation, Meritorious Mast.

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

BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority:  MARCORSEPMAN Par. 1105.
 
Chronological Listing of Significant Service Events:

940217:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

940419:	Pre-service moral waiver granted.

950331:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 950327, tested positive for cocaine.

950411:	Applicant counseled on availability of assistance for substance abuse treatment at Veterans Administration Medical Center.

950424:	Director, Consolidated Drug and Alcohol Center, Substance Abuse Evaluation indicates drug and alcohol abuse.  

950712:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was nonjudicial punishment on 950720 for wrongful use of cocaine.  

950712:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

950712:	Commanding Officer, 3d Battalion, 10th Marines, Applicant’s discharge by reason of misconduct due to drug abuse pursuant to the provision of paragraph 6210.5 of the reference.

950720:	NJP for violation of UCMJ, Article 128:  In that SNM did, on or about 950321, wrongfully use a controlled substance, to wit: Cocaine.
Award:  Forfeiture of ½ pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  The portion of punishment pertaining to forfeiture of ½ month’s pay per month for a period of 2 months, of that amount $426.00 is hereby suspended and 45 days extra duty suspended for a period of 6 months.  Not appealed.

950829:	Commanding Officer, 10th Marines, recommended Applicant’s separation under other than honorable conditions by reason of misconduct due to drug abuse.

951027:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, the board specifically found by a preponderance of the evidence, that the Applicant did use drugs as alleged.  As to the allegations set forth in the Notice of Proposed Separation the Board found that all allegations are supported by a preponderance of the evidence.  By a unanimous vote the board recommended retention.

960207:	Counseled this date concerning being processed for Admin Sep for drug abuse.  Acknowledged being retained by the Commanding General.  Should Applicant be involved in another drug related incident, applicant acknowledged that he will be referred to trial by Court-martial.

960624:	SJA review determined the case sufficient in law and fact.

960625:	Commander, 2d Marine Division, MarForLant, directed Commanding Officer, 10th Marines, 2d Marine Division, MarForLant, to place a page 11 entry into the service record book of Applicant indicating he was processed for an administrative discharge for drug abuse and retained.

961009:	Joined Marine Corps Base Brig, Camp Lejeune, North Carolina, for confinement.

961030:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 112a.
	Specification:  Did, at an unknown location, between on or about 960715 and or about 960724, wrongfully use cocaine.  Plea: Guilty.  Finding: Guilty.
	Additional Charge: violation of UMCJ, Article 112a:
	Specification: Did, at an unknown location, between on or about 960826 and or about 960904, wrongfully use cocaine.  Plea: Guilty.  Finding: Guilty.
	Sentence:  Confinement for 90 days, forfeiture of $583 per month for 3 months, reduction to E-1, bad conduct discharge.
	CA 970209:  The sentence approved and ordered executed, except for bad conduct discharge.
	
961220:	From confinement, restored to full duty. 

961224:	Applicant to appellate leave.

970917:	NMCCCA:  Affirmed findings and sentence.  

971202:	Appellate review complete.

971211:	SSPCMO:  Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19971211 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial.  That sentence was subsequently approved by both the convening and appellate review authorities (A and B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).  

With respect to a discharge adjudged by a court-martial case, 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.  After a thorough review of the Applicant’s record and issues submitted, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed.  Relief denied.

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.  Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 950818 until 010831. 

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, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

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