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

  ex-Pvt, USMC
Docket No. MD03-01088

Applicant’s Request

The application for discharge review was received on 20030609.  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 listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20020415.  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

No issues were submitted by the Applicant. 

Issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

“1.  The Veterans of Foreign Wars US appreciates the opportunity to have conducted a review of the aforementioned applicants file on August 12, 2003.  IAW SECNAV Instructions 5420.174C  of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.3, Equity of discharge, we ask for all submitted evidence and statements of the applicant be carefully considered in addition to the DD 293 application on file.

The veterans of Foreign Wars US express purpose in providing this review, and any other submittals or opinions of record, is to aid the applicant in resolving any improprieties in the character and basis for discharge.  After reviewing all evidence, we ask the Board to resolve any doubt in favor of the applicant and to grant the action requested as entitled under Title 10 U.S.C., Section 1553.”

Documentation

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

Applicant’s DD Form 214
Ltr frm VFW dtd 030815
Applicant’s DD Form 215 dtd 990129
Ltr frm RAL dtd 981129
Ltr frm AF dtd 021119
Ltr frm CR dtd 021216

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		960524 - 961112	COG

Period of Service Under Review:

Date of Enlistment:  961128		Date of Discharge:  990126

Length of Service (years, months, days):

	Active:    02 01 29
	Inactive:  None

Age at Entry:  22			Years Contracted:  8 

Education Level:  12			AFQT:  31

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (5)			Conduct:  3.9 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  Sea Service Deployment Ribbon

Days of Unauthorized Absence:  16

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:

960518:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver granted.  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

970806:  	Counseled for deficiencies in performance and conduct for poor judgment by excessive drinking.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981001:	NJP for violation of UCMJ, Article 112a (1 spec):
Specification 1:  Wrongful use of a controlled substance, to wit: Tested positive for Cocaine as evidenced by Admin Message R222244Z Sep 98.
Awarded forfeiture of $519.00 per month for 2 months, restriction for 60 days reduction to E-2.  Not appealed.

981001:	Counseled for deficiencies in performance and conduct for illegal use of drugs.  Disciplinary and discharge warning issued.

990122:	Counseled for deficiencies in performance and conduct for unauthorized absence.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990126:	NJP for violation of UCMJ, Article 86 (1 spec):
Specification 1:  UA from 0801, 990105 – 1800, 990121 from appointed place of duty.
Awarded forfeiture of 479.00 per month for 2 months, restricted for 45 days, reduction to E-1.  

No discharge package available for review

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990131 under other than honorable conditions for misconduct due to drug abuse (A).  In the absence of a discharge package, the Board presumed regulatory in the conduct of governmental affairs (B) and, after a thorough review of the records, supporting documents, facts, and circumstances unique to this case, 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.  Mandatory processing for separation is required for Marines who abuse illegal drugs.  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 Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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