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

 ex-PFC, USMC
Docket No. MD01-01154

Applicant’s Request

The application for discharge review, received 010905, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing discharge review before a traveling panel closes to Fresno, CA.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington, DC Area.  The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.    

Decision

A documentary discharge review was conducted in Washington, D.C. on 020417.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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 (verbatim)

1.  While serving as a student at the School of Infantry, MCB, Camp Pendleton, CA with the U.S. Marine Corps.  I was a Marine PFC (E-2) with 5 months in service and upon graduation was to report to Security Forces School in VA.  One weekend on liberty approx. Oct 15, 1999 myself and a PFC R____ T____, USMC, 3/5 went to Tijuana Mexico.  I was 18 yrs old at the time with a flawless criminal record and had no intention of doing anything to jeopardize my mil career, after excessive drinking I was highly intoxicated and left the club and returned to my room to sleep when I got there PFC T____ was smoking Methamphetamines, he pressured me to do the same, I refused, he persisted and said I had to.  Because I was intoxicated as well as highly pressured I gave in.  I tested positive on my urine analysis and was told I would be discharged.  I was advised against court-martial and took an AD SEP (NJP) OTH Discharge.  I took this because I was told by my battalion CO Maj. C_____, USMC.  That I would be able to return to active service after a 2 yr waiting period.  I found this not to be true.  My 2 yr period is almost up, but I was told I cannot re-enlist because my assigned re-enlistment code is (RE-4B) I would like to be assigned a different re-enlistment code to serve again.

Documentation

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

Copy of DD Form 214 (2)
Applicant's Personal Testimony Statement (9pgs)
Copy of Bureau of Security and Investigative Service Firearm Permit
Copy of Driver's License
Copy of Security Officer Badge
Copy of Social Security Card
Copy of Armed Forces Identification
Copy of Drug Testing, Article 15, and Administrative Punishments Information (3pgs)
Employment Reference Letter 
Reference Letter from P____ T____, Director of Payette Alternative School 
Reference Letter from T_____ S____, Teacher Aid/Secretary of Payette Alternative High School
Reference Letter from G___ L____,Teacher of Payette Alternative High School
Letter from Applicant 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		990426 - 990523	COG

Period of Service Under Review:

Date of Enlistment:  990524		Date of Discharge:  000124

Length of Service (years, months, days):

	Active:    00  07  18
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  62

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.8 (4)			Conduct:  2.7 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Sharpshooter Badge

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:

990425:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

991020:	NAVDRUGLAB [SAN DIEGO, CA], reported applicant’s urine sample, received 991013, tested positive for [Methamphetamine].

991027:	NJP for violation of UCMJ, Article 92: Did on or about 991015 and 991016  disobey a lawful order by going to Tijuana.
Awarded forfeiture of $223.00 pay per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

991104:	NJP for violation of UCMJ, Article 112a: Tested positive for methamphetamine on a urinalysis conducted on 991010.
Awarded forfeiture of $479.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-1 .  Not appealed.

991104:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

991104:	Applicant advised of his 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.

991104:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was Private F____'s wrongful use of illicit drugs.  On 10 October 1999 a drug message was received from the Navy Drug Lab indicating that Private F____ had tested positive for methamphetamine which was lated adjudicated at nonjudicial punishment. 

991202:	SJA review determined the case sufficient in law and fact.

991208:	GCMCA [Commanding General] 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 000112, in absentia under other than honorable conditions for misconduct due to drug abuse (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1. The Board found that the applicant’s age, education level, and test scores qualified him for enlistment.  While he may feel that intoxication and peer pressure were factors that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions.  Relief denied.

The Board found no impropriety or inequity in the fact that the applicant chose to accept NJP instead of a court-martial for his military offenses. On 991104, the applicant was advised of his 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. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces, and this issue does not constitute a basis for relief.  Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  While the applicant claims statements made to him by superiors concerning his discharge constitute an injustice, the Board could discern no such error or injustice  during the applicant’s enlistment.  Additionally, 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 service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

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 Present. 

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 a lawful general order; Article 112a, wrongful use of a controlled substance.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls10.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023