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

ex-PFC, USMC
Docket No. MD05-00308

Applicant’s Request

The application for discharge review was received on 20041130.  The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Jewett, Texas.  The Applicant did not list a representative on his DD Form 293.  In the acknowledgement letter, the Applicant was informed the Naval Discharge Review Board (NDRB) does not travel and all hearings are held in the Washington, D.C. Metropolitan area.  The NDRB also advised the Applicant that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050210.  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.  “So i may go back and serve my country, And protect my family.  I J_ L_ belive i have learned from my past not to make any mistakes.  i am a little older and i want to make it my life please.

     A wise man once said its not how long you stay on the ground, but how fast u pick your self up.  If you were to ask any of my Sgts or SSGts they will tell you i was the most hardcharging Marine on my platoon, i worked Hard never complaind.  And i was good at being a Marine.  I am very ashamed to come home From work day after day, turn on tv. And see people no Marines giving there life for mine  I want to be there  i should Be there  i  will keep writing month atfter month to You until i am granted my Request  i will not take no for an answer.” 

Documentation

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

Applicant’s letter to the Board, undated
Applicant’s Resume
Applicant’s DD Form 214
Message from National Personnel Record Center dtd November 3, 2004
Standard Form 180, dtd 110704
Military Personnel File Information Letter  

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR (J)		000731 - 010225	COG

Period of Service Under Review:

Date of Enlistment:  010226		Date of Discharge:  020612

Length of Service (years, months, days):

	Active:    01  03  17
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  41

Highest Rank:  LCpl			MOS:  3531 (Motor Vehicle Operator)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (*)			Conduct:  4.4 (*)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

	* Extracted from Administrative Separation Package.

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:

000727:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

020409:	NAVDRUGLAB [Jacksonville, FL] reported Applicant’s urine sample, received 020404, tested positive for THC.

020416:	Counseled for deficiencies in performance and conduct.  [Concerning my illegal drug involvement, positive urinalysis for (THC) on 020204 confirmed by NAVDRUGLAB message 091716Z Apr 02]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020503:	NJP for violation of UCMJ, Article 112a: Did at an unknown location, on or between 020215 and 020322, wrongfully use marijuana.
Awarded reduction to PFC, E-2, forfeiture of $619.00 pay per month for 2 months (suspended for 6 months), and 45 days restriction and extra duties.  Not appealed.

020508:	Substance Abuse Evaluation Report indicates no diagnosis was made.  Recommendations: Impact to be scheduled by command, weekly visits with Unit SACO until workshop, individual should be held strictly accountable for his actions, and Per MCO P1000.10 individual should be processed for Administrative Separation for use of an illicit substance.
     
020520:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020522:	Applicant advised of rights and having elected 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.

020523:	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 “nonjudicial punishment conviction of 3 May 2002 for violation of Article 112a, UCMJ.  The respondent was screened in accordance with Marine Corps Order P1000.10 at the Substance Abuse Counseling Center, Naval Hospital, Camp Lejeune.”     

020604:	SJA review determined the case sufficient in law and fact.

020607:	GCMCA [Commander, Marine Corps Base, Camp Lejeune] 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 20020612 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:  Concerning the Applicant’s desire to “go back and serve my country, (a)nd protect my family,” 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.

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.  A service characterization of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a member of the United States Marine Corps.  The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to general (under honorable conditions) would be inappropriate.  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 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, and credible evidence of a substance-free lifestyle 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 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