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

 ex-Pvt, USMC
Docket No. MD03-01311

Applicant’s Request

The application for discharge review was received on 20030801.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed.  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 20040514.  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 and narrative reason of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Dear Members of the Board:

Thank you for taking the time to consider this request. You stand in receipt of a discharge upgrade request and a re-entry code upgrade. I have enclosed in this composition several issues that you may consider in granting me this request.

The following are reasons why I think my discharge should be changed as I believe the discharge received was not proper and somewhat inequitable. In addition, and most importantly, I am seeking re-enlistment and an upgrade is needed so that my re-entry code will be acceptable for re-enlistment. The issues are:

1.  My discharge was inequitable because it was based on one isolated incident in ten (10) months of service with no other adverse action.

2.  The incident which resulted in my discharge was awarded for civilian misconduct which was not service related or impairing.  The following examples reflect service achievement and support the claim that the incident was not impairing to my service conduct.  These examples are most likely documented in my service record.  They are as follows:

a.  Excellent ASVAB scores documented in the 90's.
b.  Physical Fitness scores (PFT's) that are well above average.
c.  While in MOS school at NAS Millington, Memphis, TN, in Avionics, I achieved performance to maintain at the top of my class prior to discharge.

In short, it has been eight (8) years since the incident occurred that resulted in my discharge.  There was no alternative course of action offered after the incident (i.e.Non-Judicial Punishment [NJP], counseling, classes, etc.).  A considerable amount of time has passed and now that I am older, I have gained wisdom, but most importantly, I have gained the maturity that enables me to reflect on mistakes I have made in the past that could have a negative impact on my character in the future.  As you know, the character of a military discharge can have far reaching effects on an individual, but my primary purpose for seeking this upgrade is so that I may re-enlist. I want to clear up this blemish on my character and fulfill my commitment to the Armed Forces that I originally swore an oath to.  My diligence to pursue this upgrade is a matter of personal achievement.

Thank you for your review and any efforts in this matter are greatly appreciated.  I look forward to the possibility of re-enlistment and in resuming my military service.  I anxiously await your correspondence and have all confidence that this issue will be resolved in the affirmative very soon.

Respectfully Submitted

D_ R_ G_ (Applicant)
SSN: (social security number deleted)”

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)		940706 - 941024	COG

Period of Service Under Review:

Date of Enlistment:  941025		Date of Discharge:  950804

Length of Service (years, months, days):

	Active:    00  09  10
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  90

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.1 (3)			Conduct:  3.0 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  14

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE/INVOL DIS (BOARD WAIVED) (MISCONDUCT) DRUG ABUSE, authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

940630:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

950503:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 0501, 950417 to 1810, 950430 (14 days/surrendered).
Awarded forfeiture of $427.00 per month for 1 month, extra duties for 14 days, reduction to Pvt.  Forfeiture suspended for 2 months.  Not appealed.

950503:	Counseled for deficiencies in performance and conduct.  [Your misconduct which resulted in one nonjudicial punishment.  This type of behavior will not be tolerated.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950523:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 950511, tested positive for cocaine and THC.

950531:	Vacate forfeiture awarded at Commanding Officer’s NJP dated 950503.

950531:	NJP for violation of UCMJ, Article 112A (2 specs):
Specification 1: Wrongfully use marijuana between 950417 and 950501.
Specification 2: Wrongfully use cocaine between 950417 and 950501.
Awarded forfeiture of $427.00 per month for 2 months, extra duties for 14 days.  Forfeiture suspended for 2 months.  Not appealed.

950613:	Preliminary Screening:  Applicant found to have an irresponsible use of drugs.  

950619:	Applicant notified of option of VA treatment after separation.

950619:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

950619:	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.

950620:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your illegal in-service use of a controlled substance as evidenced by one nonjudicial punishment for wrongful use of marijuana and cocaine. 

950725:	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.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950804 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).

Issues 1 and 2.  There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  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.

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 P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

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