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

  ex-Pvt, USMC
Docket No. MD04-00352

Applicant’s Request

The application for discharge review was received on 20031218.  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 Uncharacterized.  The Applicant requested a documentary record review.  The Applicant did not list a representative on his DD Form 293.  Subsequent to the application, the Applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  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 for 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:

Issue 1:  “On 000420, I was attempting to enlist with the United States Marines Corps.  However, I tested positive for Drugs.  I was refered for rehabilitation services.  I attempted to seek these services as stated on FORM 601-23-4-E, #3 Section (b).  When I failed the medical test, I was issued these sets of rules and regulations.  A month later I received a call from my recruiter.  He stated that I did not have to complete the rehab plan before enlisting.  Because of the recruiter’s good explanations, and good recruiting skills, I skipped rehab and enlisted 000613.  Less than two months with out any type of rehab.  On 0001230, I was Discharged for drugs.  While in the Marine Corps, drugs were readily available.  I have never treated for drugs at any clinic.  When discharged from the Marine Corps, again, I was never offered rehab services.  Instead, I was told to say that I was not addicted to drugs.  Because, I wanted all my troubles to be gone, I told them what they wanted to hear.  “I am not addicted to drugs”.

Per DoD Directive 1332.14, Encl. 3, Part 1-F, and the fact that I have less than 180 days of active service with an UNDER THAN HONORABLE CONDITIONS DISCHARGE, I would like to request a change to “Entry Level separation” of Uncharacterized.

In addition, because no rehab was ever given, before enlistment and dates of separation.  I feel that I was taken the opportunity to receive an Honorable Discharge.  I would like to be considered for Honorable.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

Issue 2: “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on July 14, 2004 and the following comments are hereby submitted.

We ask for careful and considerate review on this application. We refer this case to the Board for their careful and compassionate consideration.”
Documentation

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

Restrictions on Personal Conduct in the Armed Forces
Front page of Enlistment Physical, SF 88
Page two from Applicant’s Enlistment Contract (DD Form 4/2)
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None			HON
	Inactive: USMCR (J)		000420 - 000723	COG

Period of Service Under Review:

Date of Enlistment:  000724		Date of Discharge:  001230

Length of Service (years, months, days):

	Active:    00  05  07
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  57

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (1)			Conduct:  4.2 (1)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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:

000417:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver was granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

001108:	NAVDRUGLAB [San Diego, CA] reported Applicant’s urine sample, received 001103, tested positive for THC.

001204:	NJP for violation of UCMJ, Article 112a:  Wrongful use of a controlled substance …
Awd red to Pvt/E-1, forf of $502.00 per month for 2 months, and 45 days restriction and extra duties.  Not appealed.

001207:	Applicant refused the required medical officer’s evaluation and he acknowledged by refusing the evaluation he would not be eligible for any Veterans Administration Hospital Addiction Treatment program in conjunction with his discharge.

001204:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the Applicant’s “wrongful use of illicit drugs.”

001204:	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.

001204:	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 illicit drugs.”

001215:	SJA review determined the case sufficient in law and fact.

001220:	GCMCA [Commanding General, Marine Corps Base, Camp Pendleton, CA] 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 20001230 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).

Issues 1 & 2.  By regulation, members discharged within the first 180 days of enlistment are given a service characterization of “Uncharacterized” unless there were unusual circumstances regarding performance or conduct which would merit a less than honorable characterization.  A service characterization of under other than honorable conditions is warranted when the 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 record is marred by award of nonjudicial punishment (NJP) for the wrongful use of a controlled substances and his subsequent refusal to participate in the Addictions Rehabilitation program offered to him.  The Applicant’s summary of service clearly reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service; thereby, demonstrating he was unsuitable for further service.  An upgrade to honorable and/or a narrative reason change would be inappropriate.  Relief denied

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.   

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 P1900.16E), effective 31 Jan 97 until 31 August 2001. 

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