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

  ex-Pvt, USMC
Docket No. MD03-01254

Applicant’s Request

The application for discharge review was received on 20030718.  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 review was conducted in Washington, D.C. on 20040430.  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  J. C. C.(Applicant) fully accept the discharge the U.S. Marine Corps has given me, for I know the actions that I did and take full responsibility for them, and even though I had reasons for doing what I did I know it wasn’t right butt it was the only way I know I could get out of the service to handle the personal problems I had back home.  I never intended on getting discharged until I hear about how things were going back home.  My little bothers were messing up in school and getting into trouble, giving my mom a hard time and also around the same time my girlfriend was sick and she was pretty bad, she couldn’t eat or walk all she did was sleep, the doctors couldn’t figure out what was wrong with her so they gave her a spinal tap and still couldn’t’ figure out what was wrong with her, but as time passed she healed and got better thanks to the Almighty God.  Plus my little brothers have changed and are doing better in school and staying out of trouble.  Up to this day all I’ve been doing was work at a company, but I have stopped in order to attend Long Beach City College in the fall of 2003 to take up Law Enforcement that’s why I ask to have my discharge upgraded and if possible I would like to ask if my RE-code which is RE-4B could be dropped a point in order for me to go back into the service and finish my oath I have promised my country.  Thanks you.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		000811 - 001211	COG

Period of Service Under Review:

Date of Enlistment:  001212		Date of Discharge:  020114

Length of Service (years, months, days):

	Active:    01  01  02
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  35

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.1 (3)			Conduct:  1.6 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  136

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:

010914: 	NJP for violation of UCMJ, Article 86 (2 specs):
Specification 1:  UA from 010419 to 010618.
Specification 2:  UA from 010629 to 010909.
Awarded forfeiture of $521.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

010921:	NAVDRUGLAB SAN DIEGO, reported Applicant’s urine sample, received 010914, tested positive for THC.

011023:	NJP for violation of UCMJ, Article 112a (1 spec):
Specification 1:  Wrongful use of a controlled substance.
Awarded forfeiture of $521.00 per month for 2 months, restriction and extra duties for 45 days.  Not appealed.

011004:	Applicant refuses medical officer’s evaluation. Applicant briefed on VA treatment options.

011119:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your wrongful use of illicit drugs.

011119:	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.

011119:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was Private C_’s use of illicit drugs. Commanding officer’s comments: [His willful use of illicit drugs is a direct violation of the Marine Corps’ policy on drug abuse and constitutes a flaunting of authority and that policy.] 

011129:	SJA review determined the case sufficient in law and fact.

020102:	GCMCA [CG MCB Camp Pendleton] 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 20020114 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.  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 Applicant contends that his problems in the Marine Corps can be attributed to his family issues.  While he may feel that his family concerns were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief on this basis is denied.

Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  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.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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