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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMCR
Docket No. MD05-01349

Applicant’s Request

The application for discharge review was received on 20050802.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  The Applicant designated Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060601.  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 by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and from an attached letter to the Board:

“Issue 1.  Upgrade of discharge
 Issue 2.  Reenlistment to finish out contract”

“To Whom it May Concern:

In January of 1998 I R_ R. G_ (Applicant) enlisted in the United States Marine Corps and was discharged in November of 2002.  My career in the Marine Corps was great and I enjoyed every moment of it.  I have always tried to excel and do my best in every aspects of my life and in everything I do.  I try to be a good role model for my peers as well as those around me and have tried to instill good qualities in everyone of them.  That is what leads me to this letter.

Sir or Madam I am requesting for an upgrade in my discharge from the United States Marine Corps.  On November of 2002 I received a discharge of Other Than Honorable under Bad Conduct, due to the fact that I tested positive for illegal drug use on a urinalysis administered by the Inspector Instructor staff on November of 2001.  This discharge has been haunting me for the past three years and I have tried to put it behind me, yet I cannot bring myself to doing so.  I understand that I am the only one to blame and at the time did not fully understand the outcome of my actions.  This moment of stupidity in my life has caused so much stress and anger.  I now fully comprehend the outcome of my actions and apologize completely to everyone in the Marine Corps.  Sir or Madam I was not thinking right at this period in time in which I committed my offense and honestly thought to myself that it was not a big deal.  I was foolish and naïve to believe that it was not important and in doing so I have disgraced the Marines, and my family name.

I fully understand the consequences of my actions and feel that I have dealt with them accordingly.  I would like to request for an upgrade to honorable discharge and if given the chance, I am willing to finish my contract with the Marine Corps to receive my honorable discharge.

Sincerely, 

[signed]  F_ R. G_ Jr.

Additional issues submitted by Applicant’s counsel/representative Disabled American Veterans:

“Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Under Other Than Honorable (OTH) Conditions discharge to Honorable.

The FSM served on active service from January 5, 1998 to November 15, 2002 at which time he was discharged due to Misconduct. 

The FSM contends the current discharge is improper because the evidence does not support this harsh of a discharge. The action he committed was wrong and the decision made with poor judgment for which he accepts responsibility, but it should also be noted that his proficiency and conduct marks of 4.5 / 4.5 do not support the recommendation of this harsh a discharge.

In support the FSM submits several letters attesting to the outstanding level of character the FSM maintains, and the positive image he reflects to the community, both during and after service.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.”

Documentation

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

Character Reference ltr from R_ V_, Mayor, City of Almo, dtd July 21, 2005
Character Reference ltr from R_ F. A_ Jr., undated
Character Reference ltr from Dr. W_ M_, Grace Community Church, dtd July 17, 2005
Character Reference ltr from G_ G_, undated

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19970419		Date of Discharge:  20021115

Length of Service (years, months, days):

Active:    00 05 22
	Inactive:  05 01 04

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  6

Education Level:  12				AFQT:  59

Highest Rank:  LCpl				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (6)				Conduct:  4.5 (6) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Sharpshooter Badge

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:

970418:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

980105:	Applicant reported for initial tour of active duty for training.

980626:	Applicant released from initial tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.

990516:	Counseling:  Advised of deficiencies in performance and conduct (concerning your failure of the PFT on the following date: 15May99.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000803:	Counseling:  Advised of deficiencies in performance and conduct (Deficiencies for not being enrolled in direct deposit.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010524:	LATE ENTRY:  SNM was mailed letter declaring him an unsatisfactory participant via certified mail 7099 3220 0000 8840 6318 on 24 May 01.  SNM was mailed letter advising him of the Impact of an Other Than Honorable Discharge via certified mail 709 3220 0000 8840 6318 on 24 May 01.  The letter was receipted for on 31 May 01.

010623:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl due to unsatisfactory participation acquiring nine unexcused absences and separation proceedings having been initiation, (4th Qtr), 2001 promotion period.  Applicant did not sign.

010626:	LCpl G_ was mailed a letter of intent to reduce via certified mail 7099 3220 0000 8840 6363 on 26 Jun 01.  PS Form 3811 was returned on 13 Jul 01.  SNM was allowed 20 days from the date of receipt to provide a written statement for the unit commander’s consideration.  LCpl G_ (Applicant) was not available to sign a service record entry to this effect due to his absence from drill.

011021:	Counseling: Appeared before the Commanding Officer to address his unsatisfactory participation. The Commanding Officer authorized drill with no pay for all unexcused absences. Applicant provided the Commanding Officer with a schedule to make up all unauthorized absences. 

011125:	Counseling: Applicant completed all make up drills for unexcused absences. 

011203:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample.  Tested positive for cocaine.
	[Extracted from Counseled Warning dtd December 07, 2001].

011207:	Counseling:  Advised of deficiencies in performance and conduct (Illegal drug use.  Cocaine usage identified through urinalysis conducted on 9 November 2001.), necessary corrective actions explained, sources of assistance provided.

011208:	Applicant informed eligible but not recommended for promotion to Cpl_ for the period of Dec 2001 due to confirmed use of illegal drugs.  

011208:	Counseling:  Advised of deficiencies in performance and conduct (Illegal drug use), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

020207:	Applicant informed eligible but not recommended for promotion to Cpl because an administrative separation package recommending discharge was forwarded to GCMCA.

021026	Commanding General, Headquarter, Fourth Marine Division, informed the Commandant of the Marine Corps (MMSB-20), that the Applicant will be discharged under other than honorable conditions by reason of misconduct.

021115:	Inspector-Instructor, Detachment, Company C, 1st Battalion, 23D Marines, 4th Marine Division, informed Lance Corporal F_ R. G_ (Applicant), that he is hereby discharged from the U. S. Marine Corps Reserve as of 2359 on November 15, 2002.  Characterization of service is Under Other Than Honorable Conditions.

Service Record Book contains a partial Administrative Discharge package
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021115 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence.  There is no evidence in the record, nor has the Applicant produced any evidence, that the discharge was not proper and equitable.  The Board presumed the Applicant was notified of the intended recommendation for discharge by reason of misconduct due to drug abuse, was advised of his rights and provided the opportunity to consult with counsel, and elected or waived each right. The Commanding General, Headquarters, Fourth Marine Division, approved the Applicant’s discharge under other than honorable conditions by reason of misconduct. Relief denied.

The Applicant’s representative contends inequity in that the discharge is too harsh. He states that the Applicant’s proficiency and conduct marks support a more favorable discharge characterization. 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 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.

The Applicant contends that his drug use resulted because he was “not thinking right” and was “foolish and naïve.” While he may feel that his immaturity was 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 denied.

The Applicant requests an upgrade of his discharge to allow him to reenlist. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing enlistment opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Therefore, no relief will be granted.  

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided four letters of recommendation as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge.  Therefore, relief is not warranted.  

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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 
01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.

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

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

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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