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

 ex-PFC, USMC
Docket No. MD02-00232

Applicant’s Request

The application for discharge review, received 020109, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 021023.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service at the time of issue.  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 Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  The Applicant requested an upgrade to his discharge based upon his post-service conduct.  The Applicant also expressed his desire to reenlist.

Documentation

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

Statement from Applicant dated October 10, 2001
American Red Cross certifications (4 pages)
Letter of support dated October 10, 2001 from Applicant
Character reference dated October 14, 2001
Character reference, undated
Character reference dated October 8, 2001
Character reference dated September 28, 2001
Character reference dated October 6, 2001
Character reference, undated
Character reference dated October 12, 2001
Character reference dated, undated
Character reference dated October 4, 2001
Character reference dated October 6, 2001
Character reference dated October 16, 2001
Character reference, undated
Character reference dated October 3, 2001
Character reference, undated
Character reference dated October 2, 2001
Character reference dated October 2, 2001
Character reference dated October 9, 2001
Character reference, undated
DD Form 149 dated January 1, 2002
Copy of DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		930621 - 940612	COG

Period of Service Under Review:

Date of Enlistment:  940613		Date of Discharge:  960503

Length of Service (years, months, days):

	Active:    01  10  21
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (7)			Conduct:  3.9 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, Rifle Expert Badge

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:

930616:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

960125:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 960112, tested positive for THC.

960223:	NJP for violation of UCMJ, Article 112a:
Specification: Wrongful use of a controlled substance.
Awarded forfeiture of $490.00 per month for 2 months, oral reprimand, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

960315:	Medical evaluation for drug abuse found the Applicant to be a drug abuser, isolated incident, not drug dependent. 

960326:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

960326:	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.

960403:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was illegal drug use which resulted in testing positive for THC on a urinalysis given on 8 January 1996 as confirmed by Naval Drug Lab, Jacksonville, Florida message 250536Z Jan 96. 

960415:	SJA review determined the case sufficient in law and fact.

960418:	GCMCA [Commanding General, 2d Marine Division, MarForLant] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010215:	NDRB documentary record review Docket Number MD00-00991 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 960503 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’s discharge characterization accurately reflects his service to his country.  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.  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.  However, 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.  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.  The Board determined that the Applicant’s evidence of post-service conduct did not mitigate the offense for which he was discharged.  Relief not warranted.

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.  Relief is therefore denied.

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.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), Chapter 2, paragraph 2.17.e., AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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