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

  ex-Pvt, USMC
Docket No. MD04-01265

Applicant’s Request

The application for discharge review was received on 20040806.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050629.  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:

1.  “To Whom It May Concern:
All that I could think about since I was a small kid was being a Marine.  I dreamed about it every night, read about it and watched every movie that had Marines involved.  In my senior year in high school, I had the opportunity to speak with the local recruiter Staff Sgt. S_.  After talking with him I could not sleep.  All I could think about was finally getting the chance to live my life long dream.  I had already developed the pride of being a marine, and felt honored to have this chance.  I was working out and running for many months so that I could qualify and enlist.  I was so excited that I began to talk to everyone I knew about the benefits and privilege of being in the Corps.
I eventually signed up two of my close friends, which made me feel good.  It also let me move up a rank to PFC.
I could hardly wait for the day my training would begin.  Boot Camp was hard, but I knew it would be worth all the work and effort.  When Boot Camp ended I was in the best shape of my life, and felt proud to wear my uniform.  I came home on my leave and immediately went everywhere I could to show off my uniform and tell everyone about the Marines.
I returned to Pendleton area for MCT.  During the first couple of training days I injured my right shoulder.  I went to the corpsman to have my shoulder checked, because I did not want to miss any of my training.  When he told me that I could not go on with training because I was injured, I felt totally destroyed.
When I was put into rehabilitation for my shoulder I was put into Rehab Platoon.  Everyday I would go to my appointment to strengthen my shoulder.  I tried very hard to get well as quickly as possible, but I knew it would take some time.  While in rehab several other marines and I were in severe pain but were unable to get any medication for relief I asked a fellow marine if he had any Aleve, Advil, or other such medicine.  He gave me a pill and I took it without knowing or questioning what type of medication it was.  I trusted that it was nothing major that could harm me or jeopardize my Marine Corps career.  It was only much later that I came to realize that I had made a huge mistake.
Upon my return to my base I took a voluntary urinalysis without knowing that I had taken a prescription medication.  To my surprise, I tested positive for Fiorinal, a headache medication.  I need to mention that I had no prior history of drug abuse.  I was a good Marine, did what I was told, and had plans to go from MCT to my MOS school to become an amphibious assault vehicle crewman.  I had planned to make the Marines my lifetime career.
During the days that followed and led up to my NJP I was totally confused, depressed, and had no idea what was happening to me.  I talked to three different legal officers to ask for advice.  They told me ‘just take the NJP.”  When I got the NJP I did not understand that I was going to be busted down in rank and discharged.
Additionally, the corps took back $900 of pay, gave me 45 days restriction and 45 days extra duty.  I was totally devastated and confused.  During the 45 days I still wanted to be part of the Marine Corps.  I truly did not know what was going on.
Since my discharge, I have had a totally clean record.  I have no problems with my driving, no alcohol abuse, or any drugs.  I have spent a great deal of time helping the local recruiters recruit new enlistees from local schools.  I have been working at the same job for over 5 years and have received several pay raises and promotions.  I have received many compliments from clients as well as company management relating to the quality of my work, my dependability, reliability and overall attitude.  However, every day I think about how badly I want to be a Marine.  I now understand that what I did was poor judgment, but an honest mistake.  I know that it was wrong of me to take the prescription medicine and I admit that it was my fault for having made that decision.  However, I feel that the so-called “crime” did not fit the punishment.  I am asking that you review my records so that I can get my discharge upgraded to a general or honorable discharge with a higher re-enlistment code.  I would then be able to re-apply to the Marine Corps.  It is still my dream to serve my country as a United States Marine.
I truly hope that you will consider my request.  Thank you for your time and consideration in this matter.

Respectfully,
S_ W_ B_ (Applicant)”

Additional issues submitted by Applicant’s representative (American Legion):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part IV, Paragraph 403 m (7), as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with Title 32, CFR, section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition.

The Board’s attention is invited to Block 28 of DD Form 214.  The block should read misconduct vice misconduct-drug abuse (administrative board required but waived).

Please inform this Applicant that reenlistment codes are not within the Board’s purview.

Review of the service records reveal that this former member maintained satisfactory Proficiency/Conduct markings of 3.6/3.6 and earned the RMB.  He was awarded NJP on 990216 for VUCMJ, Article 112a.  Following due process notifications, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by MARCORSEPMAN, Paragraph 6210.5.

Essentially, as noted on DD Form 293 attachment, this Applicant is requesting that his discharge be upgraded because he did not knowingly take illicit drugs and because he has been productive, law abiding citizen.  He has submitted 6 pages of additional documentation attesting to his good post service character, hard work and family involvement for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553, and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Applicant’s statement, dated July 28, 2004, which is reprinted above as issue 1 (2)
Applicant’s letter, dated September 7, 2004
Criminal history check, dated August 31, 2004 (2)
Job/character reference, dated September 6, 2004 (2)
Job/character reference, dated September 5, 2004 (2)
Character reference, dated September 5, 2004 (2)
Character reference, dated August 30, 2004 (2)
Character reference, dated November 13, 2000 (2)
Applicant’s DD Form 214 (4)
Separation/Travel Pay Certificate, dated April 2, 1999 (2)
Applicant’s letter dated March 11, 2005
Three pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980406 - 980823	COG

Period of Service Under Review:

Date of Enlistment:  980824		Date of Discharge:  990402

Length of Service (years, months, days):

	Active:    00  07  09
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rank:  PFC			MOS:  9971

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (3)			Conduct:  3.6 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  RMB

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:

980401:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

981224:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 981218, tested positive for Butalbital.

990216:	NJP for violation of UCMJ, Article 112A:
Specification: Tested positive for Butalbital on a urinalysis conducted on 981216.
Awarded forfeiture of $450.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-1.  Not appealed.

990304:	Applicant refused Medical Officer evaluation.

990308:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse.  The least favorable characterization of service may receive is a under other than honorable.

990308:	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.

990308:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was Applicant’s wrongful use of illicit drugs.

990322:	SJA review determined the case sufficient in law and fact.

990323:	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 19990402 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 contends that he unknowingly used a fellow Marine’s prescription medication to treat pain and that his corresponding nonjudicial punishment and subsequent administrative separation was therefore inequitable.  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.  The Applicant’s illicit use of prescription medication is considered “wrongful use of a controlled substance” punishable under the UCMJ, Article 112a.  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. 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.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

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.

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.  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 5420.174D 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