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

 ex-PFC, USMC
Docket No. MD03-01515

Applicant’s Request

The application for discharge review was received on 20030924.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant listed Maj S_ B_ as his representative on the DD Form 293, but subsequently withdrew his name as counsel.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040617.  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.  “My characterization of service is disproportionate because it was based on a one incident of youthful indiscretion in over three years of exemplary service as a Marine (see Documents 3 and 4).  I continue to exhibit the discipline and leadership characteristics that learned in the Marines as a Soldier in the Massachusetts Army National Guard (see Document 5 and 6), in my civilian employment (see Document 7), and as a member of the Massachusetts National Guard Ceremonial Unit (see document 8).  Additionally, I request my reentry code in block 27 of my DD 214 be amended to reflect an Honorable characterization of service.”

Documentation

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

Applicant’s DD Form 214
Ltr from Applicant dated 15 Oct 2002
Ltr from GySgt D_ dated 1 Jul 2002
Ltr from SSgt H_ dated 8 Sep 2002
Ltr from Cpt M_ dated 1 May 2002
Ltr from MSG M_ dated 2 Oct 2002
Ltr from J_ M_, undated
Ltr from Cpt S_ dated 1 Oct 2002
Ltr from Maj B_ dated 11 Sep 2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		911030 - 920913	COG

Period of Service Under Review:

Date of Enlistment:  920914		Date of Discharge:  960124

Length of Service (years, months, days):

	Active:    03  04  11
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  67

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (9)			Conduct:  4.3 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, 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:

911028:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

940919:	Counseled for deficiencies in performance and conduct  [Violating Articles 86 and 91 of the UCMJ].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950621:	NAVDRUGLAB [SAN DIEGO], reported Applicant’s urine sample, received 950615, tested positive for [THC].

950707:	NJP for violation of UCMJ, Article 112a (1 spec):
Specification 1:  Did on or about 6 June 1995, on the island of Oahu, HI, wrongfully use Marijuana.
Awarded forfeiture of $400.00 per month for 2 months (forf of $400.00 pay per mo forf 1 mo, sups for 6 mos), restriction and extra duties for 45 days, reduced to E-2.  Not appealed.

950831:	Counseled for deficiencies in performance and conduct  [Use of THC].

950831:	Applicant declined VA treatment for substance abuse.

950911:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Applicant’s wrongful use of marijuana as evidenced by his nonjudicial punishment on 6 July 1995.

950911:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B and to waive all rights.

950911:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the Applicant’s wrongful use of marijuana as evidenced by his NJP on 6 July 1995. 

951130:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

951212:	SJA review determined the case sufficient in law and fact.

951222:	GCMCA [CO, MCBH] 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 19960124 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.  The Applicant states his discharge was based on “one incident of youthful indiscretion in over three years.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

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 subsequent to leaving the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was not found to mitigate the conduct for which he was discharged.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 18 Aug 95 to 30 Jan 97. 

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