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

ex-PVT, USMC
Docket No. MD05-00038

Applicant’s Request

The application for discharge review was received on 20040930.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record 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 20050201.  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.  “I think that my discharge was inequitable because I was discharged six months after I got in.  I just began my military life.  The reason why I want my discharge to be changed is so that I can get back into the military.  I love the military and want to be and serve my country.  I want to go and fight in Iraq.  Please members of the Review Board take into consideration and change my discharge so that I’ll be able to serve my country.”

Documentation

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

Applicant’s DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		030131 - 030805	COG

Period of Service Under Review:

Date of Enlistment:  030806		Date of Discharge:  040109

Length of Service (years, months, days):

	Active:    00  05  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  38

Highest Rank:  PFC			MOS:  9971

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (1)			Conduct:  4.2 (1)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, REB

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:

030131:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

031119:	NAVDRUGLAB [SAN DIEGO, CA], reported Applicant’s urine sample, received 031114, tested positive for [cocaine].

031125:	Counseled this date concerning my illegal drug involvement (cocaine) identified in his system through urinalysis confirmed by Navy Drug Lab SAN DIEGO, CA msg 191849ZNOV03.  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

031201:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, to wit: cocaine: 109ng in his system; while attached to India Co, SOI(W) on or about 031111.
Awarded forfeiture of $575.00 pay per month for 2 months, restriction and extra duties for 45 days, reduction to E-1.  Not appealed.

031203:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

031203:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

031203:	Applicant refused Medical Officer’s Evaluation for substance dependence.

031203:	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 wrongful use of cocaine.  

031208:	SJA review determined the case sufficient in law and fact.

031210:	GCMCA [Commanding General] 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 20040109 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.  The Applicant’s time in service does not provide a basis for relief.  The Applicant’s positive urinalysis and nonjudicial punishment for cocaine use provides credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The discharge was proper and equitable.  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.  

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety 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.  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 P1900.16F), effective 01 September 2001 until Present.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy 	Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023