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

 ex-PVT, USMC
Docket No. MD01-00698

Applicant’s Request

The application for discharge review, received 010417, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing discharge review before a traveling panel.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington, DC Area.  The Naval Discharge Review Board (NDRB) also advised 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 011018.  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.  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

1.  I wish to upgrade my discharge in order to re-enlist into the U.S. Army also.  I feel that my punishment did not fit my violation and my command was unfair and against me.

Documentation

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

Letter from Applicant
Letter from Applicant's Wife (2pgs)
Employment/Character Reference Letter

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		None

Period of Service Under Review:

Date of Enlistment:  990519		Date of Discharge:  000610

Length of Service (years, months, days):

	Active:    01  00  22
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  61

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (1)			Conduct:  3.8 (1)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman 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:

990518:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver approved. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

000105:	SACO evaluation indicates drug abuse.

000218:	NJP for violation of UCMJ, Article 112a: Wrongful possession of a controlled substance,(marijuana) in Waikki, HI on or about 0900, 991122; violation of UCMJ, Article 107: False official statement, on or about 0900, 991122 did make a false official statement, with intent to deceive, to 2ndLt S____ by denying any involvement with the controlled substance.
Awarded forfeiture of $479.00 per month for 2 months, restriction and extra duties for 45 days, reduction to E-1.  Not appealed.

000301:	Counseled for deficiencies in performance and conduct.  [Lack of Marine Corp Leadership Traits and Principles.  You have specifically shown a lack of integrity in that you continuously make false statement to many Marines of 3d Bn 3d MAR, which brings out distrust between you, your peers and your superiors.  Any type of distrusting relationship in the Marine Corps will put a damper on the mission that needs to be accomplished].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000309:	SACC recommended SMN be processed for Administrative Separation IAW reference (a) MCO P5300.12a and reference (b) MCO P1900.16E. for Illicit Drug Use.

000328:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 134:(2 Specifications),.
	Specification 1: Breaking restrictions, Specification 2: Breaking restrictions.
	Finding:  to Charge I and the specification 1 and 2 thereunder, guilty.
	Sentence:  Confinement for 15 days, forfeiture of $465.00 pay per month for 1 months.
	CA action 000329:  Sentence approved and ordered executed.

000501:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infraction and drug abuse.

000501:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

000501:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was your numerous violations of the UCMJ, to include wrongful possession of marijuana, false official statement, and breaking restriction (2 offenses), as supported by one page 11 counseling entry, one nonjudicial punishment, and a summary court-martial on 000328. 

000505:	SJA review determined the case sufficient in law and fact.

000508:	GCMCA [Commanding General, MCB Hawaii] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infraction and drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000610 under other than honorable conditions for misconduct due to drug abuse (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  Concerning a change in reenlistment code, 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.

The applicant felt that his punishment did not fit his violations and his command was unfair and against him.  The Board found that possession of illegal drugs constitutes drug usage (A).  The Board found no evidence that the applicant’s punishments for the offenses with which he was charged were improper or inequitable.  The Board presumes findings at a Court Martial to be established facts.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The applicant, after consulting with legal counsel, waived his right to contest the characterization of service at an administrative hearing while being processed for discharge in 2000.  Under Other Than Honorable conditions most clearly describes the applicant’s characterization of service.

The discharge was proper and equitable.  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.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief 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 Present. 

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 107, false official statements; Article 112a, wrongful use of a controlled substance; Article 134, breaking restriction.

C.  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.  

D.  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.

E.  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 “afls10.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