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

 ex-PVT, USMC
Docket No. MD02-00640

Applicant’s Request

The application for discharge review, received 020403, 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 the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  Subsequent to submission of the DD Form 293, the Applicant appointed the Veterans of Foreign Wars as his representative.  In the acknowledgement letter to the Applicant, he 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 030214.  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

Naval Discharge Review Board,

This letter is in regards to the upgrade of my Other Than Honorable discharge (more specifically to the re-enlistment code) from the Marine Corps in March of 1996.

The purpose of this action is so I can, upon obtaining my degree in Aviation Science from the Ohio State University in a few months, apply for a commissioned officer flight position in one of the U.S. armed services.  The current re-enlistment code won't allow for this and I do not believe this is accurate of my character or resources I can offer.

When I was eighteen years old, I joined the Marines to better myself and firmly believe that I have achieved that goal.  I have included some supporting documents to illustrate my behavior over the past 5 years.  The evidence shows hard work in key positions for large corporations, continued college education and also demonstrated economic/management leadership in real estate investments.

When I was nineteen years old, on the island of Kuaii, Hawaii, my squadron was performing some training and we all took an evening off, drinking at the local pub.  While there, I met some local girls my age and we went for a ride after I had been drinking heavily with my Staff Sgt.  I grabbed another Marine to buddy up with and we took off in the girl's car to simply hang out.  One of the girls pulled out marijuana, started smoking it and passed it to me.  Without thinking and intoxicated I tried it - and suddenly the other Marine got out of the car and remained silent.  After a few days of training we returned to the main base on Oahu.  Immediately after unloading, I was told to report to the Commanding Officer.  A few days later my urinalysis came back testing positive for marijuana and I was stripped of all pride, rank, pay, and friendship while being assigned to mopping the floor duty.  This one incident is not representative of my character.

Hopefully this letter shows you how I feel about this matter and how much I would appreciate an upgraded discharge and reenlistment code so I can go on to serve this great country using my acquired flight experience in college.  If you have any questions please call.  Thank you.

Submitted by the VFW:

We concur with the Applicant’s contention that his UOTH discharge be upgraded.  We ask that his post service employment and his continued pursuit of academic studies be considered in your decision.  We refer this case to the Board for their careful and compassionate consideration and request the applicant’s discharge be reviewed for upgrading under other than honorable conditions be upgraded to general under honorable conditions.

Documentation

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

Copy of DD Form 214
Résumé
Copy of Driver License and Social Security Card
Letters of Recommendation (2)
College Transcript (2 pages)
Sierra Academy of Aeronautics Progress Report (2 pages)
Copy of College Graduation Petition for Associates Degree 
Covad Communications Employment Offer Letter
Copy of Real Estate Transfer Disclosure Statement (2 pages)
Copy of Residential Lease (2 pages) 
Ohio State University Revised Grade Report of Autumn 2001

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		940225 - 941003	COG

Period of Service Under Review:

Date of Enlistment:  941004		Date of Discharge:  960327

Length of Service (years, months, days):

	Active:    01  05  24
	Inactive:  None

Age at Entry:  18			Years Contracted:  5

Education Level:  12			AFQT:  71

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (5)			Conduct:  4.0 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge, NDSM

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:

940224:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

951222:	NAVDRUGLAB [SAN DIEGO, CA], reported Applicant’s urine sample, received 951218, tested positive for THC.

960216:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a;
	Specification: Did, on the island of Kauai, Hawaii, on or between 951110 and 951209, wrongfully use marijuana.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Hard Labor for 30 days, reduced to E-1.
	CA action 960223:  Sentence approved and will be executed.

960220:	Counseled concerning illegal drug involvement; specifically the use of marijuana identified through urinalysis testing given by NAVDRUGLAB SAN DIEGO CA, LAB ACCESSION NO 521522 for THC.  Disciplinary and administrative discharge warnings issued.

960226:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

960226:	Applicant advised of his rights and having elected 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.

960229:	Director, Substance Abuse Counseling Center, Marine Corp Base evaluation indicates No diagnosis DSM IV:V71.09 and Drug Abuse IAW Reference (a) MCO P5300.12 and Reference (b) ALMAR 246.92.

960229:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was wrongful use of marijuana.  

960306:	SJA review determined the case sufficient in law and fact.

960307:	GCMCA [Commanding General, Marine Corps Base Hawaii] 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 960327 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 Applicant’s discharge characterization accurately reflects his service to his country.  Drug abuse, even on one occasion, warranted processing for separation under other than honorable conditions.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity 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.  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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation 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.  Relief not warranted.

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 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 18 Aug 95 to 30 Jan 97. 

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