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Docket No. MD02-00340

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

ex-LCpl, USMC
Docket No. MD02-00340

Applicant’s Request

The application for discharge review, received 020128, 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 020912.  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-Drug abuse (with administrative discharge board), authority: MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

Prior to the documentary discharge review, the applicant introduced no issues as Block 8 on the DD Form 293 is blank.

Documentation

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

Character reference from Brigadier General dated December 13, 2001 (2 copies)
Statement from applicant dated December 27, 2001
Copy of appointment to Corporal dated January 1, 1992 (2 copies)
Copy of District Nineteen's Republican Newsletter dated October 2001
Copy of newspaper articles from the Arizona State Monitor
Copy of two cartoons
Copy of applicant's DD Form 214
Copy of military education dated June 29, 1992

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		871204 - 880913	COG

Period of Service Under Review:

Date of Enlistment:  880914		Date of Discharge:  921125

Length of Service (years, months, days):

	Active:    04  02  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  5

Education Level:  12			AFQT:  57

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (16)		Conduct:  4.4 (16)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM, GCM, NUC

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS /Misconduct-Drug abuse (with administrative discharge board), authority:  MARCORSEPMAN Par. 6210.5.

Chronological Listing of Significant Service Events:

871123:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

880914:	Initial enlistment contract documented admission of pre-service marijuana experimentation.  Enlistment waiver was granted.  

920526:	NAVDRUGLAB, Oakland, CA reports applicant's urine sample, received 920518, tested positive for THC.

920624:	NJP for violation of UCMJ, Article 112a:
Specification: Wrongful use and possession of marijuana.
Awarded forfeiture of $250.00 per month for 1 month, extra duties for 45 days, reduction to LCpl.  Not appealed.

920731:	NAVDRUGLAB, Oakland, CA reports applicant's urine sample, received 920727, tested positive for cocaine.

920810:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive test for THC (marijuana) as verified by NAVDRUGLAB Oakland, CA message dated 261600Z May 92.

920813:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

920820:	Commanding Officer, Marine All Weather Fighter Attack Squadron 225, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was wrongful use, possession, etc., of a controlled substance.  Commanding Officer’s comments: LCpl (applicant) was a good Marine whose conscious decision to use drugs is unacceptable.  I strongly recommend that LCpl (applicant) be discharged from the Marine Corps IAW P5300.12 Paragraph 2203.2, Change 4, and I further recommend that the characterization of discharge be Other Than Honorable.

920922:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

921026:	SJA review determined the case sufficient in law and fact.

921027:	GCMCA [Commanding General, 3d 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 921125 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).

The applicant introduced no decisional issues for consideration by the Board.  There is credible evidence in the record that the applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The Board agrees that the applicant had good evaluations and a solid record of performance during his tenure, but his performance prior to the drug abuse does not mitigate his use of illegal drugs.  Relief 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.  Relief not warranted.

In the applicant’s letter, he requests a change to his 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 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.  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 P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6600/A0100/A9500/A9217/A9439/A9445/A9221