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

ex-PFC, USMC
Docket No. MD02-00121

Applicant’s Request

The application for discharge review, received 011017, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested 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 020701.  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, as submitted

1.  Upgrade discharge to Honorable.

2.  To reverse decision on Summary Court martial.  
     a) return rank of E-4

3.  Correct DD-214 #27 for eligible for re-entry.

Documentation

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

Applicant's letter of intent to the Board (5 pages)
Copy of DD Form 214
Certificate of Meritoriously Promotion to Corporal dtd 2 Dec 98
Certificate of Meritoriously Promotion to Lance Corporal dtd 2Mar 97
Certificate of Promotion to Private First Class dtd 1 Oct 96
Certificate of Marine of the Quarter Award dtd 30 Sep 98
Certificate of Good Conduct dtd 22 Apr 99
Certificate of Commendation dtd 8 Jun 99
Certificate of Commendation dtd 1 Oct 98
Certificate of Commendation dtd 8 Sep 98
Certificate of Commendation dtd 7 Sep 97
Certificate of Meritorious Mast dtd 4 Feb 97
Letter of Appreciation (CO, MCSS Schools, Camp Lejeune) dtd 18 Sep 96
Letter of Thanks (CO, Marine Aerial Refueler Transport Squad 352) dtd 1 Feb 00
VMGR-352 Pro/Con markings dtd Feb 4, 2000
PRO/CON Recommendation undated
Certificate of Participation (Exercise Cobra Gold 97) 
Letter of Recommendation from W_ R. C, LtCol, USMC, dtd 1 Oct 99
Character Reference letter from B.H. H_, Maj, USMC, undated
Letter of Recommendation for employment from C.J. L_, Capt, USMC, undated
Separation Authority (CG, 3d MAW) dtd 1 May 00
Special Court-Martial proceedings (18 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		950920 - 960421	COG

Period of Service Under Review:

Date of Enlistment:  960422		Date of Discharge:  000502

Length of Service (years, months, days):

	Active:    04  00  11 (Doesn't exclude confinement time.)
	Inactive:  None

Age at Entry:17 (Parental consent)	Years Contracted:  4

Education Level:  12			AFQT:  74

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (12)		Conduct:  4.4 (12)

Military Decorations:  None

Unit/Campaign/Service Awards:  LoA, MM, SSDR (w/1 Star), CoC (4th award), GCM, Marksman Rifle 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:

970516:	Counseled regarding deficiencies, specifically, your disrespectful conduct towards an NCO on 28 Mar 97, lack of integrity on 8 May 97 and your failure to report to your assigned place of duty in a timely manner on 16 May 97.  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

000329:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a (3 Specifications):
	Specification 1: wrongful use of marijuana (THC) from on or about Nov 97 to Sep 98.
	Specification 2: wrongful use of Lysergic Acid Diethylamide (LSD) FROM ON OR ABOUT Nov 97 to Sep 98.
	Specification 3: wrongful use of methylenedioxy amphetamine/methylenedioxy methamphetamine (ecstasy) from on or about Nov 97 to Sep 98.
	Charge II:  violation of the UCMJ, Article 00.
	Specification:
	Findings:  to Charge I and specifications 1, 2, and 3 thereunder, guilty.
	Sentence:  Confinement for 1 months, forfeiture of  ⅔  pay ($917.00) for 1 month, reduction to E-2.
	CA 000329:  Sentence approved and ordered executed.
	
000329:	To confinement, sentence of SCM.

000421:	From confinement, to duty.

000407:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your positive confirmation of wrongful drug use, to wit:  Marijuana (THC), LSD and Ecstasy.

000410:	Applicant advised of rights and having consulted 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.

000413:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. 

000428:	SJA review determined the case sufficient in law and fact.

000501:	GCMCA [CG, 3rd MAW] 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 000502 under other than honorable conditions for misconduct due to drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1.  The Board found the applicant’s accomplishments while on active duty do not mitigate his misconduct. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions.  The discharge was proper and equitable.  Relief denied.

Issue 2.  In response to the applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.   Relief denied. 

Issue 3.  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. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore 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.  No such error or injustice occurred 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. 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 31 Jan 97 until Present. 

B.  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.  

C.  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.

D.  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