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

ex-PFC, USMC
Docket No. MD05-00206

Applicant’s Request

The application for discharge review was received on 20041109.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “Medical” and “Also the RE code s/b changed.”  The Applicant requested a documentary record review.  The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118.  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 reason 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 was 18 when I entered the Marine Corps almost immediately after graduating from high school.  After boot camp and MOS school I was assigned to Camp Pendleton for about one month and shipped out to Kuwait.  We were the first to enter Iraq.  We pushed into and .. through Bagdad to an airport.  We were involved in several fire fights.  We were under constant threat of attack.  I was in Iraq for approximately 4 1/2 to 5 months.  I shot at many of the enemy and witnessed the death of many Iraqese.  Three members of my Company were killed.  Gunery Sgt. D_ had his leg blown off from a mine.  Our medic was shot in his neck.  We left Iraq and were on a ship for about 3 months before returning to Camp Pendleton, CA.  It was at this time when we had a lot of “down time” that I started to experience depression.  My best friend since the 2nd grade was killed in a car wreck back home.  I think I tried to self medicate myself with alchohol.  The medical narrative is in error when it states that I used marijuana twice in high school.  I did not.  A girl friend blew marijuana smoke in my mouth twice.  I did not smoke it.  I admitted to smoking marijuana while at Camp Pendleton.  I feel that it was self medication.  I could not understand why I was depressed.  I now believe that my depression was a reaction to combat or PTSD.

I am not 20 years old and do not smoke or drink.  I am employed fulltime and plan to go back to college.  I do not believe that one incident after experiencing combat for the first time should have warrented an Other Than Honorable discharge with a RE-4B reenlistment code.  I ask the Board’s consideration to upgrade my discharge to Honorable and to change my RE code to 2 or better.  I have turned my life around and wish to have a clear record.  I was a good Marine with no incidents of any trouble until this one event, and I volunteered that I had smoked marijuana before I was tested.  I ask the Board’s consideration to my request.”

Documentation

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

Applicant’s DD Form 214
Psychiatric medical evaluation (5 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR (J)		020226 - 020726	COG

Period of Service Under Review:

Date of Enlistment:  020727		Date of Discharge:  040220

Length of Service (years, months, days):

	Active:    01  05  29 (Accounts for lost time.)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  36

Highest Rank:  LCpl			MOS:  0612 (Field Wireman)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (5)			Conduct:  3.5 (5)

Military Decorations:  CAR

Unit/Campaign/Service Awards:  SSDR, NDSM, PUC

Days of Unauthorized Absence:  (25) 20031101-20031125

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:

020701:	Initial enlistment contract documents admission of pre-service illegal drug experimentation.  Enlistment waiver was granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

031209:	NAVDRUGLAB [San Diego, CA] reported Applicant’s urine sample, received 031203, tested positive for THC.

031222:	NJP for violation of UCMJ, Article 86:  … 0800, 031101, did fail to go to his appointed place of duty and did not return until 0800, 031126.
Violation of UCMJ, Article 112a:  … did test positive for the use of marijuana.  
Awd red to E-2/PFC, forf of $645.00 per month for 2 months, and 45 days restriction and extra duties.  Not appealed.

040105:	Applicant’s letter to the Commanding General admitting illegal drug use.

040106:	Applicant refused Medical evaluation for his drug abuse.

040113:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by “a positive drug message.”

040113:	Applicant advised of rights and having consulted 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.

040113:	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 “test(ing) positive for the use of marijuana.”

040115:	SJA review determined the case sufficient in law and fact.

040127:	GCMCA [Commanding General, 1st Marine Division (Rein)] 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 20040220 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:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While the Applicants may feel that his “depression” resulting from a childhood friend’s death in a car accident or an unspecified combat trauma was a contributing factor to his misconduct, it does not mitigate his disobedience of the orders and directives regulating good order and discipline in the naval service.  His service record is marred by award of non-judicial punishment (NJP) for drug abuse substantiating his misconduct and demonstrating he was unsuitable for further service.  For the Applicant’s edification, Marines guilty of illegal drug use normally receive a discharge characterization of under other than honorable conditions.  It must be noted most Marines serve honorably; thereby, earning their honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due.  An upgrade to honorable would be inappropriate.  Relief denied.  

The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  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.  This issue does not serve to provide a foundation upon which the Board can grant relief.

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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.  At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  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 additional documentation to support any claims of post-service accomplishments 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 P1900.16F), effective 01 September 2001 until Present.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy 	Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023