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

 ex-PFC, USMC 
Docket No. MD03-00533

Applicant’s Request

The application for discharge review was received on 20030210.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20040205.  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 am requesting an upgrade of my discharge so I will qualify for medical assistance.  It is of the utmost importance that you consider the upgrade.”

Documentation

Only the service and medical records were reviewed, as the Applicant did not provide additional documentation for the Board to consider.  

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980709 - 981004	COG

Period of Service Under Review:

Date of Enlistment:  981005		Date of Discharge:  001116*

Length of Service (years, months, days):

	Active:    02  01  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  5

Education Level:  12			AFQT:  58

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (7)			Conduct:  4.0 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*Cannot verify date – DD Form 214 not contained in service record book and Applicant did not provide a copy, as requested by the Board.

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:

980709:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

990504:	Counseled regarding deficiencies, specifically, violation of the UCMJ, Article 86 by being absent without authorization from Physical Training at 0600 on 990501.  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

990520:	NJP for violation of UCMJ, Article 86: On or about 0546, 990511, absent himself from his unit, to wit:  AMS1, MATSG, NATTC, NAS Pensacola, FL and remain so absent until on or about 0815, 990511.  
Awarded forfeiture of $479.00 pay per month for 1 month (suspended for 3 months), restriction for 20 days, reduction to E-1 (suspended for 3 months).  Not appealed.

990803:	Acknowledged eligibility but not recommended for promotion to rank of Lance Corporal for the Jul/Aug 1999 promotion board because of recent NJP.

991213:	Counseled regarding deficiencies, specifically, violation of the UCMJ, Article 86 by failing to appear on time to a scheduled uniform inspection on 11 Dec 1999.  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

000816:	NAVDRUGLAB [San Diego], reported Applicant’s urine sample, received 000811, tested positive for THC (marijuana).

000925:	Naval Addictions Rehabilitation and Education Dept, Naval Hospital, Camp Pendleton, CA:  Applicant refused medical officer’s evaluation and acknowledged that there is no Veterans Administration Hospital Addiction Treatment available in conjunction with discharge.

001017:	NJP for violation of UCMJ, Article 112a:  Wrongfully use marijuana.
Awarded forfeiture of $563.00 pay per month for 2 months, restriction and extra duties for 30 days, reduction to E-2.  Not appealed.

001027:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to drug abuse as evidenced by NJP on 000816 for Art 112a and Page 11 entries on 990602 and 991213 for unauthorized absence.

001027:	Applicant advised of his 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.

001031:	Commanding Officer, Personnel Administrative Support Detachment, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and pattern of misconduct.  The factual basis for this recommendation was NJP on 990602 for Article 86 and on 001017 for Art 112a and Page 11 entries on 990504 and 991213 for unauthorized absence.

001106:	Commanding Officer, Marine Aircraft Group 39, recommended discharge under other than honorable conditions.

001113:	SJA review determined the case is legally sufficient.

001115:	GCMCA [CG, 3d Marine Aircraft Wing] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a patter of misconduct and misconduct due to drug abuse, with the misconduct due to drug abuse as the primary basis on the DD Form 214.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20001214, as stated by the Applicant, 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.  Drug abuse warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining medical or other veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

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