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

  ex-PFC, USMC
Docket No. MD03-00425

Applicant’s Request

The application for discharge review was received on 20030116.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the RE Code changed to RE-3.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031121.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 stated

Applicant’s issues, as stated on the application:

“1.  I would like the board to consider changing my re-entry code to RE-3.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

“2.  This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”

Documentation

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

Copy of DD Form 214
Two photos of Applicant
Letter from CANG to Applicant
Notice from San Bernardino County Sheriff Dept.
Notice from Riverside County Sheriff Dept.
Certificate from Riverside County Sheriff Dept.
City of Banning, CA Police Recruit test invitation
City of Pomona, CA Police Recruit test invitation
Letter from San Bernardino Civil Service Office
California DMV driving record check dated February 11, 2003
Letter from Applicant dated February 13, 2003
        Letter from Applicant undated

        

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		981015 - 981025	COG

Period of Service Under Review:

Date of Enlistment:  981026		Date of Discharge:  010523

Length of Service (years, months, days):

	Active:    02  06  28
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  10			AFQT:  51

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (5)			Conduct:  4.2 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  4

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:

981015:	Initial enlistment contract documents admission of pre-service illegal drug experimentation.  Enlistment waiver granted.

990520:	NJP for violation of UCMJ, Article 112a:  Did at an unknown location, on or about 990515 wrongfully use marijuana.
Awarded forfeiture of $479.00 per month for 2 months, restriction for 45 days and extra duties for 15 days, and reduction to Pvt.  Not appealed.

990608:	Counseled regarding deficiencies, specifically, the illegal drug involvement (THC) identified through willful admission.  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

990827:	CG, MCRD/ERR approved separation under other than honorable conditions by reason of misconduct due to drug abuse.  Execution thereof suspended for 12 months.  

991025:	Counseled for deficiencies in performance and conduct.  [Lack of discipline, and violation of the UCMJ, by failing to go at the time prescribed to evening formation on 991017 at 2145 and morning formation on 991018 at 0500.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001213:	NAVDRUGLAB [San Diego, CA], reported Applicant’s urine sample, received 001206, tested positive for THC.

010125:	NJP for violation of UCMJ, Article 112a:  Did on or about 001204 wrongfully use marijuana; and Article 92:  Did on or about 0800, 010117, having knowledge of a lawful order issued by the Battalion Commander, to wit: Limitations of Restricted Personnel, fail to obey the same by wrongfully operating a motor vehicle.
Awarded forfeiture of $653.00 per month for 2 months, CCU for 30 days, and reduction to PFC.  Forfeiture and reduction suspended for six months.  Not appealed.

010307:	Applicant directed to receive medical evaluation for drug abuse.  Applicant refused evaluation.  

010413:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by documented drug abuse.

010413:	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 and to make a statement.

010418:	Applicant’s statement in rebuttal to proposed separation submitted.

010427:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was Battalion Commander’s NJP of 010125.  

010511:	SJA review determined the case sufficient in law and fact.

010514:	GCMCA [CG, 1st FSSG] 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 20010523 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 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.  

There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  Relief denied.

Issue 2.  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 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 may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged.  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