Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. MD05-00976

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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD05-00976

Applicant’s Request

The application for discharge review was received on 20050516.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Indianapolis, IN.  The Applicant designated American Legion as the representative on the DD Form 293.
In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington National Capital Region.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060112.  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 by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached document/letter to the Board:

I am writing this letter to appeal the decision in my case on receiving benefits so that I can take care of my medical problems that I suffered while enlisted in the Marine Corps.

I was told that the reviewing officer handling my case had mentioned two factors on his decision to decline my benefits. One was about my positive results on a urinalysis test at MEPs before I had joined the service. The other was that I had positive results twice while I was enlisted in the service. That is false statement to begin with. I had only one positive urinalysis result in October of 2003 and never again.

I believe that I deserve my benefits on the grounds that I served in the Marine Corps proudly, went over seas twice. The first time was on a six-month deployment and the other in Iraq. While overseas, a few of the awards I received were: Combat Action, Global War on Terrorism Expeditionary Medal, Meritorious Unit Commendation, and a Presidential Unit Citation.

serve my country, I went to Iraq, I got meritorious mast on my deployment, and I did my job everyday. I would however, like to inform you on some things that you can not find in my records. When I came back from Iraq in late May of 2003, I was really stressed out about some things that happened during the war and before the war that because of that, I started drinking heavy and going out whenever I could and drinking more and more to relieve the stress.

While out in the field during training on July 26, 2003 I injured my right finger. Therefore, I got sent back to the rear that day while everyone else stayed to complete training. The following night, another Marine and I were watching TV in my barracks room and one thing led to another and we ended up getting in a fight with other Marines in the squad bays across from us. During that fight one thing led to another and I ended up kicking my left foot through a window as I was trying to kick him.

The reason why no one got into trouble for this incident was because of two reasons. 1) I am a Marine, and I don’t tell on other people when I get into a fight-win or lose, and 2) Because it was a pride thing I didn’t want anyone what really happened and the only people that do know is me, my buddy, and the guy that got into a fight with me.

After that incident, my command gave me a hard time about my injuries. I had to a lot of various hospital appointments for EMG’s, MRI’s, neurology, and so on.  As I was beginning to try to get medical help, a few of my friends that were Navy Corpsmen had told me that my First Sergeant was telling the battalion MO to put my name at the bottom of the list for getting help. So, then knowing that no one would believe me over a First Sergeant, I just kept on going on with what they told me. I was also trying to go to appointments, but my command would make me go out into the field while I was un-trainable. So, there wasn’t much I could do.

In the month of October 2003 I began going out a lot and drinking to keep me sane. I remember going to a club one night in San Diego and me and some of my friends got involved with a group of girls and we ended up going with them to some party where I started drinking even more. Now like I’ve told everyone else, I don’t remember smoking marijuana but that was the only night I have ever blacked out and was told by others what had happened.

I got a court-martial in December of 2003 and served 30 days in the brig. When I got out of the brig I volunteered to go to rehab because my excessive drinking was a problem. When I got out of rehab, my command was still not letting me get the medical treatment that I still needed for my injuries. When I did have a chance to go to the hospital, the doctor told me she would not treat me because I was getting out with an Other Than Honorable Discharge.

So, I would just like to finish this statement by saying that I do take full responsibility for any of my actions, however, the reason I feel that I deserve my benefits is because I was still an active-duty Marine and I did get injured while I was in the Marine Corps. I went to the war and fought, so I believe that the VA should take care of my injuries without me having to pay for them. I would also like to say that I will at any time be willing to take a urinalysis test to prove to you that I am clean. I just want you to see that I only have good intentions in receiving my benefits and that you will hopefully give me a second chance so that I can move forward with my life.

Sincerely,

 C_ A. S_(Applicant) (Not signed) 

Representative submitted no issues.

Documentation

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

Applicant’s DD Form 214
Combat History/EXPED 142 Remarks
Medical Documents (22 pgs)
American Legion Cover Letters (2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20010122 – 20010122	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010123		Date of Discharge:  20040716

Length of Service (years, months, days):

Active:    03  05  01  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  24 days

Age at Entry:  21

Years Contracted:  4 

Education Level:  12				AFQT:  59

Highest Rank:  LCpl				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (8)			Conduct:  4.0 (8)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Combat Action Ribbon, Global War on Terrorism Expeditionary Medal, Expeditionary Medal Marine Corps, Sea Service Deployment Ribbon, National Defense Service Medal, Meritorious Unit Commendation.

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:

000907:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

021223:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Jan, Feb, March 2003 promotion period because of lack of maturity.  Applicant chose not to make a statement.

030212:	Counseling:  Advised of deficiencies in performance and conduct (Art: 92 failure to obey an order, Art:134 disorderly conduct, drunkenness.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030221:	Counseling:  Advised of deficiencies in performance and conduct (Failure to have a proper shave, resulting in not upholding proper grooming standards while conducting fire watch.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030727:	Naval Hospital Camp Pendleton, CA.  Applicant to emergency room after 
		kicking a window with left foot, cutting calf.  ETOH “a lot”.  Diagnosis is 
		tibial nerve laceration. 

031031:	NAVDRUGLAB, San Diego, CA reported Applicant’s urine sample, received 031024, tested positive for THC.

031202:	Applicant acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Dec 2003 Promotion period because of lack of judgement.  Applicant chose not to make a statement.

031215:	Summary Court-Martial.
	Charge: violation of the UCMJ, Article 112a:
	Specification: Wrongful use of marijuana 031022.
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Confinement for 30 days.
	CA action 031215:  Sentence approved and ordered executed except for that portion of the punishment adjudging forfeiture of $000.00 which is suspended for 0 months.

040116:	Applicant’s request to Commanding Officer for administrative separation.  Applicant admits to being an alcoholic and that he used a controlled substance.

040121:	Naval Hospital, Camp Pendleton, CA.  Applicant entered into partial hospitalization at the Substance Abuse Rehabilitation Program (SARP) Department with a diagnosis of Alcohol Dependence/Cannabis Dependence.  Applicant referred by his command for positive Urine Drug Screen for THC on 031022.

040127:	Counseling:  Advised of deficiencies in performance and conduct (Drug Abuse).  Applicant advised that he is being processed for Administrative Separation due to drug abuse.

040128:	Naval Hospital Camp Pendleton, CA.  Applicant to emergency room with chest pain and rapid heartbeat.  Applicant states that for approximately two months, he has had one episode a day of Lt lateral chest pain, described as sharp, 7/10, with radiation to Lt neck and face.  Applicant states that he gets short of breath with these and feels like his heart is beating very rapidly.  Applicant had an episode at SARP this evening.  Applicant states that he has had these episodes daily for approximately two months, which coincides to approximately two weeks after his last use of drugs.  

040213:	Naval Hospital Camp Pendleton, CA.  Applicant has positive screening for amphetamine.  Specimen analysis was performed without chain of custody handling.  The result should be used for medical purposes only and not for any legal or employment evaluative purposes.   

040217:	Naval Hospital Camp Pendleton, CA.  Applicant released from Substance Abuse Rehabilitation Program.  Exit diagnoses:
	Axis I:  Alcohol Dependence, Cannabis Dependence, Adult Child of an Alcoholic
	Axis II: None
	Axis III:  Sinusitis, Allergic Rhinitis
	Axis IV: Routine Military Service
	Axis V: GAF - 80

040610:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with a characterization of service as under other than honorable conditions.  The factual basis for this recommendation was due to the result or urinalyses.

040610:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040615:	Commanding Officer, 3d Battalion, 1st Marines recommended Applicant’s discharge under other than honorable conditions for misconduct of drug abuse.

040713:	SJA review determined the case sufficient in law and fact.

040713:	GCMCA, Commander, Marine Corps Base, Camp Pendleton directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

040716:	Counseling:  Advised of deficiencies in performance and conduct (Loosing his own military identification card), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040716 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions.  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 (B and C).  

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant received  2 retention warnings and he was convicted by a summary court-martial for violation of UCMJ Article 112a (wrongful use of controlled substances).  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

There is credible evidence in the record that 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.  The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required

Pertinent Regulation/Law (at time of discharge)

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 
01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.

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

C.  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