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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMC
Docket No. MD05-01459

Applicant’s Request

The application for discharge review was received on 20050829.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060601.  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 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:

“I request an upgrade in order to re-enlist.  I had a hard time dealing with the death of my mother and made untimely choices.  I’m 10 years older with a family now and would like to serve this country in these times of war by reenlisting in the Infantry.”

Documentation

Only the service record book was were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19940509 - 19941016	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19941017		Date of Discharge:  19970124

Length of Service (years, months, days):

Active:    02  03  08  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:   9 days
	Confinement:		  24 days

Age at Entry:  20

Years Contracted:  4

Education Level:  14				AFQT:  53

Highest Rank:  LCpl				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (8)				Conduct:  3.6 (8)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksman Badge, National Defense Service Medal

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:

940505:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

940509:	Pre-service waiver for serious offense granted.

951030:	Applicant to unauthorized absence at 0600 on 951030.

951108:	Applicant from unauthorized absence at 1500 on 951108 (9 days/surrendered).

951115:	NJP for violation of UCMJ, Article 86: At Golf Co, BLT 2/2, 22d MEU, MARFORLANT, on or about 0730, 951003* to 1500, 951108 was UA from appointed place of duty.
Violation of UCMJ, Article 112a: At Golf Co, BLT 2/2, 22d MEU, MARFORLANT, on or about 4 Oct 95, did test positive on a urinalysis test for wrongful use of a controlled substance (cocaine).
	Award:  Forfeiture of $478 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Not appealed. [* Typographical error  on OFFENSES AND PUNISHMENTS (1070), date should read 951030].

960308:	NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 960229, tested positive for THC.

960516:	Director, Consolidated Drug and Alcohol Center, Camp Lejeune, NC, Preliminary Results of Substance Abuse Assessment: Drug abuse.  Recommend administrative separation.

960516:	Consolidated Drug and Alcohol Center, Camp Lejeune, NC provides the Applicant with a Statement of Understanding of treatment for substance abuse at a VA medical center.  Signed by the Applicant.

960521:	Director, Consolidated Drug and Alcohol Center, Camp Lejeune, NC Substance Abuse Evaluation:  Counselor’s diagnostic impression was drug abuse and was confirmed by a medical officer’s diagnosis.

961118:	Summary Court-Martial.
	Charge: violation of the UCMJ, Article 112a:
	Specification: SNM used marijuana on 951207.
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $653.80, confinement for 30 days, reduced to E-1.
	CA action 961118:  Sentence approved and ordered executed.

961118:	Applicant to confinement.  [Extracted from DD Form 214, Block 29.]

961118:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with a characterization of service as under other than honorable conditions.

 961211:	Applicant from confinement.  [Extracted from DD Form 214, Block 29.]

961218:	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.

961219:	Commanding Officer, Headquarters Company, 2d Marine Regt 2d MARDIV recommended to Commanding Officer, 2d Marines Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was respondent’s Summary Court Martial on 18 November 1996    Commanding Officer’s comments:  “Based upon enclosure (1) through (3), it is my opinion that a discharge under other than honorable conditions is warranted.  Retention of the respondent would adversely affect the moral, discipline, and military effectiveness of this organization.

970109:	Commanding Officer, 2d Marines forwarded recommending Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.   Commanding Officer’s comments:  “Private P_(Applicant)’s use of cocaine and marijuana on active duty demonstrates irresponsible and reckless behavior-negative character traits that circumscribe his usefulness to any combat organization.  His drug use coupled with the company commander’s recommendation clearly indicates a need to hold this Marine accountable for his actions.  Accordingly, his separation is essential to preserving good order and discipline in the Marine Corps.”

970117:	SJA review determined the case sufficient in law and fact.

970121:	GCMCA, Commanding General, 2d Marine Division, U.S. Marine Corps Forces, Atlantic, 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 19970124 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions.  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 (B and C).  

The Applicant contends that his problems in the Marine Corps can be attributed to his difficulty in dealing with the death of his mother.  While he may feel that was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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 a nonjudicial punishment proceedings for violations of Articles 86 (UA for 9 days) and 112a (wrongful use of controlled substances, cocaine) of the UCMJ.  In addition, the Applicant was found guilty of another violation of  UCMJ Article 112a (wrongful use of controlled substances, marijuana) at a summary court-martial.   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.  Mandatory processing for separation is required for Marine Corps 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.  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.  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 additional evidence related to this 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 P1900.16E), effective 18 Aug 95 to 30 Jan 97.

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