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

 ex-Pvt, USMCR
Docket No. MD02-00604

Applicant’s Request

The application for discharge review, received 020402, requested that the characterization of service on the discharge be changed to honorable or entry level separation or uncharacterized.  The Applicant requested 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 030106.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the Applicant’s discharge.  The Board determined that partial relief is warranted after consideration of Applicant's character references from superior NCOs, the Commanding Officer's recommendation for retention, and proficiency and conduct markings.  The Board’s vote was three to two that the discharge characterization shall change.  The discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I have been discharged on June 26, 1998 after 10 months of training because I was charged with article 112A and I feel that I was a victim of undue process.  My reason for writing you is that you are the only one I can turn to help me.  To explain what happened, it was during the urinalysis, there was fault in the procedure.  At approximately 0530, we were undergoing a standard urinalysis that unfortunately was not properly monitored and left a large margin for error.  We had people in my platoon that were labeling the wrong bottles (in which I had statements from marines in my platoon) and passing the sample bottles around.  There was one Marine who was even called back to reliable his own bottle because he had placed someone else's name was on it.  When I had been approached about the positive urinalysis, I insisted to take another on the spot and I was denied to do so.  Also I wanted to take a hair sample at my own cost but was denied also.  At that time, I was on an army post (Fort Leonardwood) that only had army personal to defend me, who happened to be a captain who hadn't any knowledge on Marine Corps law.  During that time, he told me to waive my right to go in front of a board of staff NCO and officers.  I was told to due so because to my knowledge that I was going to be recommended for retention, so I followed his instructions.  The result of this is that I now have a general under other than honorable conditions discharge with a reenlistment code of 4-b.  Since I had fought it so much the Chief Warrant Officer 4 said he would make it that I could not ever serve again.  I feel that I should be given a chance to prove myself as not having the character that perceives me as being a drug user.  To due so I will do whatever possible to get back into the military.  The purpose of this letter is not just for you to see the flaws of the procedure in the urinalysis but to see the character in which I portray.  I have been out of the Corps since June 26, 1998 and was only in for ten months in which many who have been discharged while in training always seemed to have another chance.  I have written numerous letters to Headquarters Marine Corps ever since I have been discharged.  My main focus is to regain the proud title of United State Marine once again.  What I have been doing since then was/is attending Temple University's undergraduate program.  Also I am a first-degree black belt in tae kwon do and an experienced instructor of children and adults.  I am already a basically trained Marine, which gives me the leadership skills that I now posses to take charge when put in command.  I feel that I should have a chance to prove myself as an honorable United States Marine.  I believe that I attain the qualities in what it takes to be an outstanding Marine.  I am an educated 23-year-old African-American with such qualities to lead those behind me and be a role model to those who are in the Corps for just the title.  I can show them that the Marine Corps is more then just a name on a uniform but a way of life.  I can clearly be an example of this because not many people once discharged keep trying to get back in, everyone that I have encountered, for positive or negative reasons never want to go come back, but I do.  I believe that it is the greatest honor a person could have and that is to serve their county.  Although I am under the understanding that the Naval Discharge Review board cannot reinstate me.  I am asking if my reenlistment code be changed to one that can allow me to reenlist if I ask if my discharge to be changed to a general discharge so that I can once again be with my brothers of the proud United States Marine Corps.  I have waited over two years to send this letter to the board so that I can have enough positive things to show on my resume to you.

Attached are some statements from the platoon I was a part of during training stating on the procedure in which the urinalysis was run; in which I was not able to use due to what the Army lawyer told me.  I have attached a resume so that you can see what I have been doing in past four years.  Also here are some statements from some very respected people whom believe in me as well I wish that you take these documents into strong consideration when reviewing my package and understand my serious determined attitude when making your wise decision.

Documentation

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

Character reference from LCpl, undated
Character reference from PFC dated February 18, 1998
Character reference from PFC dated February 18, 1998
Character reference from PFC dated February 17, 1998
Character reference from PFC, undated
Character reference from PFC, undated
Character reference from PFC, undated
Character reference from PFC dated February 1998
Character reference from Pvt dated February 17, 1998
Character reference from Pvt dated February 7, 1998
Character reference from PFC dated February 18, 1998
Character reference from PFC dated February 18, 1998
Character reference from 1st Sgt dated June 26, 1998
Character reference from SSgt, undated
Letter of recommendation from SSgt dated June 25, 1998
Letter of recommendation from Sgt dated June 25, 1998
Character reference from Sgt dated June 25, 1998
Character reference dated September 7, 2000
Character reference dated August 13, 2001
Character reference dated July 21, 2001
Job/character reference dated September 19, 2001
Character reference dated February 6, 1998
Character reference, undated
Applicant's résumé
Thirteen pages from Applicant's service record
Evaluation of transfer credit statement dated June 7, 2001
Applicant's DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  970722		Date of Discharge:  980626

Length of Service (years, months, days):

	Active:    00  10  09
	Inactive:  00  00  26

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  35

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 			Conduct:  4.4 

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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:

970719:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

980127:	NAVDRUGLAB, Great Lakes, IL, reported Applicant’s urine sample, received 980120, tested positive for amphetamines.

980223:	Medical evaluation for drug abuse found the Applicant to be a amphetamine abuser, not drug dependent. 

980305:	NJP for violation of UCMJ, Article 112a:
Specification: Wrongfully used controlled substance on 20 Jan 98, to wit: amphetamines.
Awarded forfeiture of $450.00 per month for 1 month, restriction and extra duties for 30 days.  Not appealed.

980318:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

980318:	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 and the right to make a statement.

980326:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to drug abuse.  The factual basis for this recommendation was Applicant's complete disregard for U.S. Marine Corps' standards and regulations.  Specifically: 5 March 1998 - (Applicant) received NJP from MTIC MarCorDet, Ft. Leonard Wood, MO for violation of Article 112a, UCMJ.  Applicant demonstrates potential for further service.

980615:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement; specifically, usage.  As identified in NAVDRUGLAB, Great Lakes, IL message 272328Z Jan 98, Batch #3017, Specimen #06, amphetamine.]  Applicant advised that processing for administrative separation is mandatory per MCO P1900.16.

980618:	SJA review determined the case sufficient in law and fact.  SJA recommended retention.

980623:	GCMCA [Commanding General, Marine Corps Base, Quantico, VA] 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 980626 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), at the time of issuance.

Issue 1.  The Board found that in the Applicant’s case, even though his discharge was proper and equitable at the time of discharge, his record of service and additional documentation provided warrant an upgrade of his characterization of service to under honorable conditions (general).  The Applicant’s character references from superior NCOs, the Commanding Officer’s recommendation for discharge under honorable conditions and subsequent recommendation for retention, and proficiency and conduct markings support an upgrade to his characterization of service.  Partial relief is therefore granted.  

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.  

The Applicant 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.  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 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 “afls14.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