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

  ex-PVT, USMC
Docket No. MD03-00742

Applicant’s Request

The application for discharge review was received on 20030324.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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.  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 20040224.  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/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because it was based on the conduct of my marine service in which I was having some troubling times because of my wife of 2 years had recently moved to Camp Lejeune with my son.  I discover that she was having an affair with a staff sergeant that lived down the block by a letter from her oldest sister.  One month after arriving that was ongoing for two years.  At the time, many of the fellow marines knew what I was going through and tried to encourage me to let it go but, the emotional strain had prove to be to much.  She would stay gone all night and day and I would have to fine a baby sister or bring him to work which was not company policies.  A fellow marine would watch him in the barracks while I worked.  It drove me mad I wanted any thing to leave it all behind.  I now regret my action and decision and a month later wished I want back in the structure live of discipline and hard work, it is still a dream of mine to be back were belong, please respectfully give me a chance to get my life straight and in order and live that life again of a structure uniform soldier which is the only one for me I have change mentally and tried to be a voice in society.  As a teacher at the L_ brewer boys and girls club and a nurse and a laborer; currently I’m still a nurse and would like to be a corpsman in the marines.  All I want to be is a marine.”

Documentation

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

Character Reference Letter dated January 31, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		920923 - 921020	COG

Period of Service Under Review:

Date of Enlistment:  921021		Date of Discharge:  941209

Length of Service (years, months, days):

	Active:    02  01  20  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  53

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.8 (5)			Conduct:  3.2 (5)

Military Decorations:  None

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

Days of Unauthorized Absence:  25

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

920922:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

930416:	Counseled for deficiencies in performance and conduct.  [UA from 930405 to 930407.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930416:	NJP for violation of UCMJ, Article 86: UA 0501, 930405 to 0820, 930407 (2 days). 
Award:  Forfeiture of $456.00 pay per month for 2 months (suspended for 2 months), restriction and extra duties for 45 days.  Not appealed.

931013:	Counseled for deficiencies in performance and conduct.  [UA over liberty, specifically from 0630, 931001 to 1315, 931007 and 0701, 931008 to 1055, 931012.  Due to extenuating circumstances surrounding these incidents, an administrative counseling is deemed appropriate.  Periods charged as annual leave.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931122:	NJP for violation of UCMJ, Article 86 (3 Specifications): Spec 1: UA from 1201, 931109 to 1408, 931109; Spec 2: UA from 0716, 931110 to 1000, 931110; Spec 3: UA from 0716, 931117 to 0705, 931118.
	Award:  Forfeiture of $200.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 14 days.  No indication of appeal in the record.

931203:	Counseled for deficiencies in performance and conduct.  [Your misconduct; i.e., frequent and reoccurring UA periods as documented on previous page 11 and 12 entries.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940124:	NJP for violation of UCMJ, Article 86: UA from appointed place of duty, on or about 0530, 940114; violation of UCMJ, Article 91: Disobey the lawful order of SSgt S_ on or about 0530, 940114; violation of UCMJ, Article 92: Failure to obey a lawful order issued by Cpl W_, on or about 1300, 940106; violation of UCMJ, Article 107: Make a false official statement by stating he had stood duty from 0001 through 0400 on 940114, when in fact he had not.  Additional Charge: violation of UCMJ, Article 91: Disobey the lawful order of Cpl W_, to field day his room on or about 1300, 940106.
Award:  Forfeiture of $217.00 per month for 1 month, forfeiture of $200.00 pay per month imposed and suspended on 931122 is hereby vacated.  Correctional custody for 7 days without suspension from duty.  No indication of appeal in the record.

940124:	Counseled for deficiencies in performance and conduct.  [Numerous minor infractions to the UCMJ, specifically, a notable record of UA, tardiness, and attitude and demeanor unbecoming of a Marine.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940708:	Counseled for deficiencies in performance and conduct.  [Failure to meet minimum performance requirements; i.e., all work completed in a shoddy, haphazard manner.  Several periods of UA.  SNM late returning back from leave.  SNM afforded numerous opportunities to improve through extensive counseling.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940829:	NAVDRUGLAB [Jacksonville, FL], reported Applicant’s urine sample, received 940824, tested positive for [THC].

940831:	NJP for violation of UCMJ, Article 86: UA 0716, 940725 to 1330, 940815 (22 days) from his appointed place of duty, to wit: HqCo, 8th Marines, S-3; violation of UCMJ, Article 112a: On or about 0716, 940725 through 1330, 940815, while in a UA/AWOL status, did wrongfully use marijuana (THC).
Awarded forfeiture of $416.00 pay per month for 2 months (suspended for 6 months), restriction and extra duties for 45 days, reduction to E-1.  Not appealed.

940907:	Director, Consolidated Drug and Alcohol Center preliminary result of substance abuse assessment was drug abuse.

941003:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to drug abuse.

941003:	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.

941003:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to drug abuse.  The factual basis for this recommendation was your non-judicial punishments of 930416, 931122, 940124 and your non judicial punishment of 940831 for wrongful use of marijuana.

941108:	SJA review determined the case sufficient in law and fact.

941118:	GCMCA [Commanding General, 2d Marine Division, MarForLant] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions and misconduct due to drug abuse with the primary reason for separation being misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941209 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.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  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.  

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 P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

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