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

 ex-PFC, USMC 
Docket No. MD03-00852

Applicant’s Request

The application for discharge review was received on 20030409.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20040312.  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 was a member of the United States Marine Corps from 1999 until 2001, at which time I feel I was unfairly given an Under Other Than Honorable Discharge.

     This came about from a conversation I had with a fellow Marine joking with him that I had tried the drug ecstasy.  I had never taken this drug but he took me seriously and reported me to my superiors. After returning to Kaneohe Marine Corps Base from a detachment to California, I was pulled aside the next morning by Naval Criminal Investigation Services and required to take a hair follicle test. The agents at NCIS said I had tested positive for the drug even though I later found out by a Navy Corpsman that this is not a very accurate test. I was told by NCIS that if I would just admit using ecstacy and give them the names of other people that were using it, they would cut me a deal so I could remain in the Marines. Since I never used the drug or knew of anyone using it I had nothing to tell them.  They said they had the test results, of which I never got to see, and gave these results to my command, 1st Radio Battalion. Upon receiving the test results, 1st Sgt. S_, took it upon herself to immediately process me for discharge.
     I went to JAG to try to get some help because I knew of another Marine, D_ H_, who had been caught with marijuana and was put on restriction and got to return to active duty and was not thrown out of the Marines.
     I told the JAG officer my situation. He counseled me to plead guilty, that way I would “only” get restriction and an Under Other Than Honorable Discharge as opposed to brig time and a Bad Conduct Discharge, which I was very scared of getting.
     When the day came for my NJP, I stood in front of Lt. Col. D_ and received my punishment which consisted of 45 days restriction, 45 days EPD, loss of rank and pay. The people present for my NJP were: Lt. Col. D_, Sgt. Major M_, 1st Sgt. S_, Gunnery Sgt. M_ and Gunnery Sgt. C_. After doing my restriction and extra punitive duty I was discharged and given a plane ticket and sent home.
      At home I was trying to get my life back together when this past year I received a phone call from one of my former Marine friends, J_ H_. He informed me that Lt Col. D_, Sgt. Major M_ and 1st Sgt. S_ were forced by the Marines to retire early due to the fact that they were issuing NJP’s to Marines for nonsense charges. Upon hearing this I went to the Marine recruiter in Evansville, IN. (My parents had moved to Indiana in 2001 and when I switched trucking companies I moved with them) I told Staff Sgt. D_ my situation and he told me to try and see if one of my state representatives could help me return to the Marine Corps. I wrote a letter to Congressman J_ H_ to see if he could help. A member of his staff, A_ N_, found out that I would have to apply to the Naval Review Board for a change in my type of discharge.
     My father retired from the Navy and that was my intent when I was in the Marines. I enjoyed my work and believe I was good at it. I also understand the situation the United States is in right now and though that is not my main reason to rejoin, I would be honored to help my country. I want to make my family proud of me and have a stable job. At present I work for a company that makes MRE’s, Ameriqual. I feel I am helping the war effort but when the war is over I do not know if my job will be secure.
     Thank you for your attention to this matter. I will be anxiously waiting your decision.”

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: None

Period of Service Under Review:

Date of Enlistment:  990113		Date of Discharge:  010706

Length of Service (years, months, days):

	Active:    02  05  24
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  45

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (7)			Conduct:  4.0 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

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:

990108:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

010221:	Counseled for deficiencies in performance and conduct.  [Financial responsibilities.  Specifically, your inability to pay your debts in a timely and consistent manner, thus causing this command to receive letters of indebtedness and phone calls from creditors regarding your debts.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010601:	NJP for violation of UCMJ, Article 112A (3 specs):
Specification 1: Wrongfully use “Ecstasy” on 2200, 010302.
Specification 2: Wrongfully use “Ecstasy” on 2230, 010407.
Specification 3: Wrongfully use “Ecstasy” on 2230, 010317.
Awarded forfeiture of $500.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

010618:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010618:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

010626:	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 violation of the UCMJ, specifically wrongful use of MDMA (ecstasy).  

010629:	SJA review determined the case sufficient in law and fact.

0107XX:	GCMCA [Commanding General, Marine Corps Base Hawaii] 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 20010706 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 Applicant’s claim that he never used illegal drugs and that his chain of command was unjust do not refute the presumption of regularity in this case.  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 P1900.16E), 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