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

ex-PFC, USMC
Docket No. MD04-00973

Applicant’s Request

The application for discharge review was received on 20040527.  The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requested a documentary record review.  The Applicant listed the Veteran’s of Foreign Wars as his representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041022.  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 on the application:

1.  “This former Marine believes the OTH discharge to be inequitable, because he his not entitled to a veterans affairs certificate of eligibility.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

2. “Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on 09-09-04 and the following comments are hereby submitted.

We support the applicant’s contentions that his discharge be upgraded.

We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for an upgraded discharge.”

Documentation

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

Applicant’s DD Form 214
Applicant’s letter to the Board (2 pages)
Family picture
Applicant’s business card
CG’s endorsement of the Applicant’s Administrative Separation, dtd 27 Jul 1998
2 pages from Applicant’s SRB
Photocopy of Real Estate License
Newspaper Article
Association Acceptance Ltr, dtd February 26, 2004
Course Completion Certificate, dtd 3/4/04
Association Acceptance Ltr, dtd March 12, 2004
Character Evaluation Sheets (2 pages)
Course Grade Sheet
Surgery Technician Student Identification Card

PART II - SUMMARY OF SERVICE

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

	Active:   			None			HON
	Inactive: USMCR (J)		960416 - 961014	COG

Period of Service Under Review:

Date of Enlistment:  961015		Date of Discharge:  980821

Length of Service (years, months, days):

	Active:    01  10  07
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  75

Highest Rank:  LCpl  (MOS:  0311, Rifleman)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (5)			Conduct:  4.0 (5)

Military Decorations:  MeritM

Unit/Campaign/Service Awards:  SSDR

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:

960415:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver was granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

970708:	Counseled for deficiencies in performance and conduct.  [Integrity violation.  Submitting false official statement.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971202:	NAVDRUGLAB [Jacksonville, FL] reported Applicant’s urine sample, received 971121, tested positive for [Tetrahydrocannabiol].

980611:	NJP for violation of UCMJ, Article 112a:  … wrongfully use a controlled substance … THC.
Awarded reduction to PFC/E-2, forfeiture of $519.00 per month for 2 months, 45 days restriction and extra duties.  Not appealed.

980713:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by “(the Applicant’s) incident of illegal drug use.”

980713:	Applicant advised of his rights and having elected not to consult 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.

980715:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was “(the Applicant’s) incident of illegal drug use.”

980727:	Medical evaluation for drug abuse found the Applicant to be a drug abuser (Isolated Incident), not drug dependent [THC].  Applicant was informed of the location of the nearest local VA treatment center should he require assistance after he was discharged.

980803:	SJA review determined the case sufficient in law and fact.

980810:	GCMCA [Commanding General, 2d Marine Division] 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 19980821 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).

Issues 1 & 2:  The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  

There is credible evidence in the record the Applicant used illegal drugs.  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.   Despite a service member’s record of performance, certain serious offenses warrant separation from the naval service in order to maintain good order and discipline.  The Applicant’s service record is marred by the awarding of nonjudicial punishment (NJP) for illegal drug use; thereby, substantiating the misconduct for which he was separated.  The summary of service clearly documents his misconduct due to drug abuse was the reason the Applicant was discharged.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board discovered no impropriety or inequity and considers his discharge proper and equitable.  An upgrade to a general discharge under honorable conditions would be inappropriate.  Relief denied.

Concerning a change in reenlistment code requested by the Applicant in his letter to the Board, 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.  As with the qualification for a certificate of eligibility for a VA loan, this issue does not serve to provide a foundation upon which the Board can grant relief.    

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 31 August 2001. 

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