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

  ex-Pvt, USMC
Docket No. MD03-01020

Applicant’s Request

The application for discharge review was received on 20030521.  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 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 20040415.  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 wish to upgrade discharge so that my RE enlistment code changes for the purpose of re enlistment.  My OTH was a result of violating a one year suspended discharge.  After returning from boot leave I failed a urinalysis and was giving the suspended discharge.  However before that year was up I had acquired 2 more NJP’s for underage drinking.  I do not feel my NJP was unjust but I would like another chance to be in the Marine Corps.  The underage drinking would no longer be an issue as I am of age.  Both drinking NJP’s were for having alcohol in the barracks, not for getting drunk and acting stupid somewhere.  As for the failed urinalysis, I learned my lesson the first time.  It has been my intention to one day reenlist ever since being discharged.  I am a little bit older and a lot smarter than while I was enlisted and would like to request another chance of offering my services to the Marine Corps.  Thank you for any consideration you give me on this matter.

Pvt R_ G_ (Applicant)”

Documentation

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

Four pages from Applicant’s service record
Applicant’s DD Form 214 (2)
Job/character reference, dated May 9, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980331 - 990131	COG

Period of Service Under Review:

Date of Enlistment:  990201		Date of Discharge:  000726

Length of Service (years, months, days):

	Active:    01  05  26
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  11			AFQT:  61

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (4)			Conduct:  3.9 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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:

980330:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

990524:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 990513, tested positive for cocaine.

990527:	Counseled for deficiencies in performance and conduct.  [Illegal usage of a controlled substance (cocaine) as verified by the NAVDRUGLAB message #R 242030Z MAY 99 ZYB.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990602:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully use cocaine between 990422 and 990506.
Awarded forfeiture of $443.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

990701:	Medical evaluation for drug abuse found the Applicant to be a drug abuser (isolated incident). 

990707:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990707:	Applicant advised of 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.

990708:	Commanding Officer, Marines Awaiting Training Company recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was use of cocaine. 

990824:	SJA review determined the case sufficient in law and fact.

990824:	GCMCA [Commanding General, Marine Corps Base, Camp Lejeune, NC] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.  However, pursuant to paragraph 6310.1a of the MCO 1900.16, the discharge under other than honorable conditions will be suspended for a period of twelve months from the date of this enlistment.

000329:	NJP for violation of UCMJ, Article 92
Specification: Pay a civilian in 29 Palms to purchase a 6 pack of Micky’s (beer) for him and brought the beer to base and consumed the beer in the barracks and shared the beer with PFC H_ and F_ on 000122.
Awarded forfeiture of $263.00 per month for 1 month, restriction and extra duties for 7 days.  Not appealed.

000612:	NJP for violation of UCMJ, Article 92:
Specification: Violate BNO 1700.3G by wrongfully possessing alcohol while under the legal drinking age on 0900, 000520.
	Awarded forfeiture of $465 per month for 2 months, restriction for 60 days, reduction to Pvt.  No indication of appeal in the record.

000613:	Applicant notified of intended recommendation to vacate suspended separation and be discharged under other than honorable conditions.  The factual basis for the recommendation is based on your violation of Article 92, UCMJ in which you were adjudicated for at company level NJP on 000329 and your violation of Article 92, UCMJ in which you were adjudicated for at battalion level NJP on 000612.

000613:	Applicant advised of 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.

000615:	Commanding Officer recommended to vacate the suspended discharge.

000620:	SJA review determined the case sufficient in law and fact.

000626:	Commander, 1st Marine Division (Rein) vacated suspended administrative separation.  The Applicant’s shall be separated with an 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 20000726 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.

Concerning a change in reenlistment code, 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.  The discharge was proper and equitable.  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