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

ex-Pvt, USMC
Docket No. MD02-01008

Applicant’s Request

The application for discharge review, received 020708, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a documentary record discharge review.  The Applicant designated the Disabled American Veterans organization as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030331.  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

Submitted by DAV:

The (FSM) entered from the United States Marine Corp on July 11, 1996 and separated on August 04, 1997 a period of (1) year and (24) days with one UCMJ punishment (Misconduct Due to Drug Abuse) which was the subsequent reason he was separated from service with the character of service Under Other Than Honorable Conditions.  The (FSM) was sentenced to a period of hard labor for which he served and was paroled and he also received a fine amounting to 2/3 of his basic pay forfeited.  The (FSM) now respectfully requests an equitable standard be applied as well as equity in treatment in seeking the boards' approval to afford him the opportunity to receive an General (Under Honorable Conditions) Discharge as a member of the United States Marine Corp.  
The (FSM) sincerely hopes that by respectfully requesting and being granted an Honorable Discharge from the Marine Corp, he feels this is a matter of Supreme Honor and Respect he will cherish throughout his lifetime.  The (FSM) also states he had always tried to achieve Honor and Respect during his entire enlistment of military duty in the Marine Corp, he just failed on this one instance and now is paying for it for the rest of his life.  The DAV respectfully request that the (FSM) be given complete and duly consideration by the board.  We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to correct the General character of his discharge from Misconduct (Under Other Than Honorable) Discharge to a General Discharge (Under Honorable Conditions).

Documentation

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

Applicant's letter to the Board in support of his request
Character Reference letter from DAV, Boston, MA, dtd June 8, 2002 
Copy of DD Form 214
Applicant's letter, dtd Jul 22, 2002, advising the Board that the Army would accept him for military service upon upgrade of discharge

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960524 - 960616	COG

Period of Service Under Review:

Date of Enlistment:  960617		Date of Discharge:  970804

Length of Service (years, months, days):

	Active:    01  01  18 (Doesn't exclude confinement time.)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  35

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.3 (4)			Conduct:  3.3 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  CoA

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:

960522:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

970426:	NAVDRUGLAB San Diego, CA, reported Applicant’s urine sample, received 18 APR 97, tested positive for amphetamine methamphetamine.

970604:	Summary Court-Martial.
	Charge I:  Violation of the UCMJ, Article 112A:  
Specification:  Illegal drug involvement (methamphetamine).
	Finding:  To Charge I and the specification thereunder, guilty.
	Sentence:  Confinement for 30 days, forfeiture of $600.00 pay per month for 1 month, reduced to E-1.
	CA action 970616:  Sentence approved and ordered executed.

970604:	To confinement at MCB Brig, Camp Pendleton, CA.

970619:	Counseled for deficiencies in performance and conduct [illegal drug involvement, Methamphetamine].  Necessary corrective actions explained, sources of assistance provided, advised of administrative discharge action.

970624:	CACC, Camp Pendleton:  Applicant was scheduled to be screened by DR. G_, a substance abuse counselor and a medical officer, on 13 Jun 97.  Applicant has refused to been seen by the medical officer.  Process for administrative separation.

970625:	Applicant acknowledged the opportunity of an evaluation and medical diagnosis and elected not to be enrolled into the Veterans Administration Drug and Alcohol Rehabilitation Program.

970627:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by urine sample.

970627:	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.

970627:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was that the Marine's failure to conform to the Marine Corps disciplinary standards was unacceptable and demonstrated a total lack of potential for further military service.

970703:	From confinement to duty.

970731:	SJA review determined the case sufficient in law and fact.

970731:	GCMCA [CG, 1st MARDIV (Rein)] 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 970804 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.  There is credible evidence in the record that the Applicant used illegal drugs.  Even one instance of drug abuse warranted processing for separation, normally under other than honorable conditions.  Relief denied.

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.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Relief not warranted.

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