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

   ex-LCpl, USMC
Docket No. MD03-00018

Applicant’s Request

The application for discharge review, received 20020924, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested 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 20030926.  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, as submitted

1.  (Equity Issue) This former member opines that his overall service record warrants separation with a characterization of his service under honorable conditions.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Four pages from Applicant’s service record
Applicant’s DD Form 214
Letter from Applicant, dated March 10, 2003
Letter from Applicant, dated March 22, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		940623 - 951127	COG
	Active:   USMC		951128 - 991012	HON

Period of Service Under Review:

Date of Enlistment:  991013		Date of Discharge:  020327

Length of Service (years, months, days):

	Active:    02  05  15
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  90

Highest Rank:  Sgt

Final Enlisted Performance Evaluation Averages:  The enlisted performance reports were available to the Board for review through 20010727.

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM (2), JSCM, AFOUA, NDSM, Letter of Appreciation

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:

991013:	Applicant reenlisted for 4 years.

011113:	Applicant admitted to Wilford Hall Medical Center after a suicide gesture at 2300, 011112.  Applicant was given a blood test and the result was a positive test for cocaine.

011116:	Inpatient Psychiatry Service evaluation:  Diagnoses: Axis I: Mood disorder.  Axis II: Deferred.  Axis III: Chronic back pain, positive urine drug screen for cocaine.  The development of suicidal ideation leading to a suicide attempt as a way of coping with stress has led to Applicant being unable to perform duties.  The suicidal behavior was manifested by overdose of medications, and required psychiatric hospitalization for stabilization.

020113:	Applicant notified of intended recommendation for discharge with lowest characterization possible as under other than honorable conditions by reason of misconduct due to drug abuse.

020122:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement, (cocaine usage identified though urinalysis confirmed by Wilford Medical Laboratory Drug Lab 011113).]   Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020122:	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.

020122:	Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to drug abuse.  The factual basis for this recommendation was wrongful use of controlled substance, to wit: cocaine.  

020311:	SJA review determined the case sufficient in law and fact.

020314:	GCMCA [Commander, Marine Corps Base, Quantico, VA] 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 20020327 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.  There is credible evidence in the record that the Applicant used illegal drugs.  Despite the positive aspects of the Applicant’s service, drug abuse warranted processing for separation, normally under other than honorable conditions.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  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 denied.

Issue 2.  The Applicant’s discharge characterization accurately reflects his service to his country for the period of enlistment under review.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged.  Relief not warranted.

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 P1900.16E), effective 31 Jan 97 until Present. 

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