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

 ex-LCpl, USMC
Docket No. MD01-00803

Applicant’s Request

The application for discharge review, received 010522, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011218.  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. The discharge is improper because of the simple fact that what I did was never told to us that it was illegal.  Being stationed in Okinawa, JP for almost 4 years, my command would always have safety stand downs on what is right and what is wrong.  We were never told that taking "BRON", a Japanese cough medicine was illegal or that it contained codeine.  It is true that I did take it more than once for a rush but at no time did I know that it was illegal and it could damage my career. As a result of this discharge, I can no longer re-enlist in another branch of service. I cannot even fulfill my dream of being a DEA agent or any law enforcement position because of this discharge.  Ever since my discharge, I have moved on getting a job and going to college to better myself and hopefully re-enlist and serve this country.  I am hoping you look at my pro's and con's my services I did and consider what I did was not my fault and upgrade my discharge.  I would really love to be able to re-enlist and continue serving my country but it all rest on this Board.  Please consider my achievements and let me serve this great nation one more time.  Thank you.

P.S.  My only dream is to a be U.S. Marine again.

Applicant marked the block "I have listed additional issues as an attachment to this
Application.”-Letter from applicant.  

Documentation

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

Copy of DD Form 214
Thirty-four pages from applicant's service

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		960605 - 960917	COG

Period of Service Under Review:

Date of Enlistment:  960918		Date of Discharge:  000912

Length of Service (years, months, days):

	Active:    03  11  25
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  46

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (11)		Conduct:  4.3 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  Letter of Appreciation, Certificate of Commendation, MM, SSDR with 2 Stars

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:

960530:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

981113:	NJP for violation of UCMJ, Article 92:
Specification: Violate MARCORBASESJAPANO 5800.8A by being in the Gate 2 Street vicinity between 0100-0500, 6Nov98.
Awarded forfeiture of $200.00 per month for 2 months, restriction and extra duties for 45 days, reduction to LCpl.  Reduction suspended for 6 months.  Not appealed.

990204:	Vacate reduction to LCpl awarded at NJP dated 13Nov98.

000719:	NJP for violation of UCMJ, Article 92 (2 specs):
Specification 1: Failed to follow order and regulation by failing to meet the guidelines as set forth in MARCORBASESJAPANO/FORO 1050.e by breaking curfew in that he reported to base at approximately 0140
Specification 2: CG 1st MAW Policy dated 7Jul00, to wit: failed to secure a "BUDDY" for liberty purpose.
Violation of UCMJ, Article 112A:
Specification: Wrongful use of BRON on 15Jul00.
Awarded forfeiture of $642.00 per month for 2 months, restriction and extra duties for 45 days, reduction to LCpl.  Not appealed.

000824:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement, "BRON", a schedule 1 drug that contains codeine].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000822:	Medical evaluation for illicit drug use found that the applicant did not reveal a pattern of drug abuse or dependence.  

000826:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000830:	Applicant advised of his rights and having consulted 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.

000826:	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 incident of drug abuse.

000901:	SJA review determined the case sufficient in law and fact.

000906:	GCMCA [Commanding General, 1st Marine Aircraft Wing] 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 000912 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.  The Board found that the applicant’s discharge was warranted for improper use of a controlled substance.  The Board agrees that the applicant had good evaluations throughout his tenure, but his performance prior to the drug abuse doesn’t mitigate his use of drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions.  Relief denied.

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’s discharge characterization accurately reflects his service to his country.  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 112a, wrongful use of a controlled substance.

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