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

  ex-PFC, USMC
Docket No. MD03-00774

Applicant’s Request

The application for discharge review was received on 20030326.  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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040212.  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. On October 20, 1998 I joined the United States Marine Corps (USMC) and enjoyed serving one year in Okinawa and two and one half years in New Orleans.

In May 2000, before leaving Okinawa for duty in New Orleans, I was instructed to have my wisdom teeth extracted after I reported to Head Quarters Battalion MAR4FORRES.  I was scheduled to have this done at the VA Hospital in June of 2000 but was unable to follow through due to an irregular heartbeat (A-Fib).  The VA Hospital instructed me to report to the Base Dental Commander.  The Dental commander instructed me to report to the Emergency Room at Meadow Crest Hospital.  I was admitted that day for two days and then dismissed for regular duty.  The condition was never corrected.

On April 15, 2002, after three and one half years of service, and a Good Conduct Medal, I received an “Other Than Honorable” Discharge due to “Misconduct.”  I know that being stationed in my hometown made it almost impossible to live up to Marine Corps expectations.  I have been unable to obtain gainful employment since that date because I am unable to pass a physical examination.  This is due to my continuous A-Fib.

I went to the VA Hospital for help to get the condition corrected but was denied because I was not eligible for benefits due to my discharge status.  I am now going through Charity Hospital trying to get this condition corrected.

Since my “Discharge”, I have been living with my family trying to get work whenever available with my Father.  I am free of all illegal drugs, and now have a steady girlfriend. I attend church regularly.  I am a law-abiding citizen, and am trying desperately to walk the path of the Lord.

I feel as though I have completely rehabilitated myself of my problem and if given the opportunity, I would re-enlist into the U.S. Marine Corps and prove myself.  I am requesting that you review my discharge status at this time and upgrade it to a General Discharge under Honorable Conditions.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		981001 - 981020	COG

Period of Service Under Review:

Date of Enlistment:  981021		Date of Discharge:  020412

Length of Service (years, months, days):

	Active:    03  05  22
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  9			AFQT:  66

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, LoA, NUC

Days of Unauthorized Absence:  None

*No Marks Found in the service record

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:

981001:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

011102:	Counseled for deficiencies in performance and conduct.  [Violation of UCMJ, Article 86.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020222:	NAVDRUGLAB Jacksonville, FL reported Applicant’s urine sample, received on 020219, was positive for THC.

020314:	NJP for violation of UCMJ, Article 92: Failed to obey order from Cpl M_ to change over to uniform of the day on 11 Feb 02; violation of UCMJ, Article 112a: Wrongfully use marijuana on or about 19 Feb 02.
Awarded forfeiture of $619.00 per month for 2 months (suspended for 6 months), restriction and extra duties for 30 days, reduction to PFC.  Not appealed.

020319:           Counseled for deficiencies in performance and conduct.  [Misconduct which resulted in NJP on 020314.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020328:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive urinalysis for marijuana.

020328:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.

020328:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was a positive urinalysis for marijuana.  

020408:	SJA review determined the case sufficient in law and fact.

020408:	GCMCA [Commander, MARFORRES] 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 20020412 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. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.   

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 P1900.16E), 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