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Docket No. MD06-00605

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

FOR OFFICIAL USE ONLY

ex-LCpl, USMC
Docket No. MD06-00605

Applicant’s Request

The application for discharge review was received on 20060329.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070103.  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.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 18, Remarks, should include the statement: “CONTINUOUS HONORABLE SERVICE FROM 930914 – 961121;” Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS;” and Block 28, Narrative Reason for Separation, should read:  “MISCONDUCT.”  The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and from an attached document/letters to the Board:

“I am requesting an honorable discharge and an upgrade in re-enlistment code to enable me to re-enlist into the marine corp.  My discharge was very severe for one isolated incident during my military career.  This incident was not of my nature and was not in my control.  I feel that my being discharged was double jeopardy due to my serving two punishments for one crime.  I was told during my court martial that I was to serve sixty days restriction and was not to loose rank or pay and that was all.  

I was a sergeant (E-5) when the incident occurred.  After my court martial I served the sixty days restriction and remained a sergeant.  When my unit went on a training operation and returned, I was told that I was being reduced in rank to lance corporal (E-3) and being discharged from the marine corp with an other than honorable discharge and a re-enlistment code of RE-4B.

Personal explanation of incident.

I was charged with having an illegal drug (LSD) in my urine after a random drug screening conducted by 1^st Battalion 11^th Marines, Headquarters Battery.  No one could have been more shocked to hear this.  I have never done any illegal drugs through out my entire life.
When I was to go to trial, I never had any doubt that the Marine Corp could have been wrong because I have full trust in the Corp and there was no reason for me to try to prove the Marine Corp wrong.
I plead guilty to having this drug in me but I had no idea how it had gotten there.

After extensive research, I had found out that Lysergic Acid Diethylamide (LSD) is a “pore” drug.  It can be dropped on the skin and the pores of the skin will absorb it.  LSD was used in parks where children played and was sold to children on temporary tattoos like the ones found in a Cracker Jack box.  Unknowingly, the child would put the tattoo on and the drug would then soak into the skin.
I also found out that this is a hallucinogen.  It is said that you would see so called “light trails” or “shifting or distorted objects”.

The night prior to me taking a urinalysis, I was at a local club in San Diego.  I was recently divorced and met a female who invited me to join her..
I had a few drinks and mingled around with the accompanied female.  Throughout the night I felt intoxicated and did not want to drive back to base.  I had excused myself from her company and went to my car where I had fallen asleep.  The next morning I then drove back to base and reported for duty.
Not knowing I had any illegal drug in me, I took the urinalysis without any doubt that anything was wrong.

The only explanation I could think of is that I had unknowingly received this drug from someone, by them putting it in my drink or unknowingly coming into contact with it through a hand shake or even through the stamp that is placed on the hand while entering the club.
There is no telling how I came in contact with the drug or who may have given it to me.  The only thing I know for sure is that I would have never done this drug or any drug for that matter.

The Marine Corp is all I have ever had and wanted.  I have always been known for my integrity and loyalty to my country and corp.  I firmly believe in Honor, Courage and Commitment.

Respectfully,
B_ P. L_ (Applicant)
(Applicant’s social security number deleted)

Dear member’s of the board,

I am humbly writing to you, requesting permission to re-enlist into the United States Marine Corp to honor and defend my country once again.  I have enclosed most of my records from the time I was a corporal until the time I was discharged from the Corp.  As you review all of my military history, you will find no major infractions.  I tried my hardest to be the best that I could at whatever mission I was given.  I led my marines with the same loyalty and integrity that I demanded of them.
I beg that you take my prior record into consideration to help you decide on my fate of coming home to my beloved corp.
My career ended before it barely began which was not physically my fault.  I understand I was in the wrong place at the wrong time and for that I am forced to live a life with out honor.
I was born to be a marine, in my heart I shall always be one but I beg of you, please let me be a marine again physically.

Very respectfully,
[signed]
B_ P. L_ (Applicant)
Semper Fidelis

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)
List of Personal References
USMC Fitness Report for period 980101 – 980228, dtd March 6, 1998 (2 pages)
USMC Fitness Report for period 980228 – 980930, dtd October 27, 1998 (2 pages)
USMC Fitness Report for period 980930 – 990331, dtd April 12, 1999 (5 pages)
USMC Fitness Report for period 990728 – 991119, dtd January 14, 2000 (5 pages)
Certificate of Good Conduct for period 14 September 1993 – 13 September 1996, dtd September 13, 1996
NMCAM recommendation, summary of action and citation, dtd July 14, 1997 (3 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (DEP)	930619 – 930913 	COG
	Active:   USMC	930914 – 961121 	HON

Period of Service Under Review:

Date of Enlistment:  961122			Date of Discharge:  991119

Length of Service (years, months, days):

Active:    02  11  28  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  21

Years Contracted:  4 

Education Level:  12				AFQT:  40

Highest Rank:  Sgt				MOS:  2531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.8 (*)   		Conduct:  4.8 (*) 
The Applicant’s Fitness Reports were available to the Board

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Good Conduct Medal, Navy Achievement Medal, Overseas Service Ribbon, Meritorious Unit Commendation, Letter of Appreciation x4

*Number of occasions not available

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:

961122:	Reenlisted this date for a term of 4 years.

990406:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 990331, tested positive for Lysergic Acid Diethylamide.

990713:	Summary Court-Martial.
	Charge: violation of the UCMJ, Article 112a:
	Specification: did on or about 990929, at an unknown location, did wrongfully use Lysergic acid diethylamide (LSD).
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: 60 days restriction, reduced to E-4 (suspended).
	CA action 99xxxx:  Sentence approved and ordered executed.

990719:	Applicant submits statement to Commanding General, 1^st Marine Division, subject: Administrative Separation:  “July 13, 1999 was the date of the summary court-martial for Sergeant B_ P.  L_ (Applicant).  This Marine plead guilty to article 1l2a of the Uniform Code of Military Justice, for wrongful use of LSD.  This marine is currently on 60 days restriction, reduction of rank and pay has been suspended.  This marine is awaiting administrative separation with an “Other than Honorable” discharge from the Naval Services.
Sir, I understand the seriousness of this offense and the mentality of the Marine Corps when it comes to drug abuse.  “Zero Defect” and I could not agree more.  
Sir, I have been in the Marine Corps for a very short 6 years.  While in the corps, I have served honorably and I have shown true dedication throughout my time.  During the last week of march, 1^st Battalion 11^th Marines held a urinalysis.  Two weeks after the urinalysis, 1^st Sergeant H_ called me into his office and told me I tested positive for LSD.  I was more surprised than anyone.  I have never done drugs in the Marine Corps and I have never done this drug in my life.  Throughout my career, I had never pondered the thought of using any illegal substance.  I never knew what LSD was until I was told I had tested positive for it.  I did a little research to see how it can be transmitted into the body, just a few facts sir, in the 80’s people sold it to children on the playgrounds of schools.  It was on the little stick on tattoos from crackerjacks.  This drug is so potent, it only takes a tear size drop to get into the system of a person.  If I may sir, I would like to tell you what had happened to me and why I plead guilty to this very serious offense.
The weekend before the urinalysis, I was at a local AM/PM gas station in Del Mar.  A young, attractive female approached me and requested my name.  After a bit of small talk, she invited me to go to a party in San Diego in the Gas Lamp District, I agreed to go.  It started at 2200 at a club called “Baha Brewery”.  I went to this club and began to have a few drinks while I wait for the female who had invited me.  Time had passed, by 2300 I had enough alcohol that I could feel the effect of it.  Around 2330 the female I had been waiting for arrived.  She came over to greet me and introduced me to 2 other females that were friends of hers from a nearby college, U.C.S.D.
Around 0200, I had danced with the 3 females and had enough alcohol to know that I was not to drive anywhere.  By the time the club closed, it was daylight out and I was very intoxicated.  In the condition I was in I was not able to drive so I slept in my car, very uncomfortable but well worth it.
Sir, I understand that this sounds pointless or even harmless.  The reason why I plead guilty to this very serious offense is that I had used very poor judgment as a sergeant.  I know in the Marine Corps, sergeants can not make bad calls or someone may end up dead.  The night at the party, I had over heard people selling, asking about and being on these drugs.  They called it “E’ing” or “Tripping”.
Sir, I honestly avoided these people.  I know I should have taken myself out of that situation, but I never thought anything like this would ever happen to me.  Everyone knows about the “Date Rape” drug, the society we live in is not perfect and when you let your guard down things like this happen to people.  It happens to good people.  Just think of the children on the playground, they believe to be getting a harmless tattoo that washes away when in all actuality they are being bread into drug habits
People in our society do things for strange reasons and the good people get caught in the cross fire and have no clue about what had just happened.
Sir, I understand the system of the Maxine Corps and in no way am I trying to beat the system.  I ask that you take into consideration, a Marines future, his life and dreams.  This drug somehow interred my system without my knowledge and has now caused my life and dreams to come to a very sudden stop.  I was one of hose people caught in the crossfire.
Sir, everyday I come to work I make it a challenge.  I know the Marine Corps is not supposed to be easy.  I tell my young marines that everyday.  I train my marines to go to war and I have given my superiors the confidence that I can lead my platoon into baffle if need be.  I have never in my career, led my marines in the wrong direction, I never have and never will.
In my short 6 years, I have become a very proficient 2531.  There is nothing in my MOS that I can not do.  I am told to be a very valuable asset to the Marine Corps and to 1^st Battalion 11^th Marines.  I have received many letters of appreciation, meritorious mast, certificates of accommodation, Navy and Marine Corps Achievement medal and a Good Conduct medal.  I have served a very successful tour in main land Japan at Camp Fuji.
Sir, there are many reasons I could think of for me to be discharged but I can only think of one not to.  My love and dedication to the corps.  Honor, Courage and Commitment are the words I live by.  As a sergeant, it is not only my job but also my way of life.  I have never purposely done anything to dishonor the Marine Corps or 1^st Battalion 11^th Marines.
Sir, I am not asking for a second chance because I know my mistake should award some soft of punishment.  My punishment as it stands is 60 days restriction, reduction in rank and pay suspended and administrative separation with an Other Then Honorable discharge.
I believe this is a very harsh punishment for something unfortunate happening to me without my knowledge.  I feel I am being punished for being the child on the playground.  Being separated from something you most dearly love is a tremendous punishment with the discharge in which I am going to receive.
Sir, I am requesting an Honorable discharge.  I believe this to be a just punishment for my first offense of bad judgment
Sir, in my 6 years I have given up a lot in my life for the Marine Corps, I had a wife and a 3 year old son.  My wife could not understand the demands of the Marine Corps, after 4 years she could not handle the corps and decided to go her own way.  I let her go and take my son, I had a mission, and it is now being canceled.  Sir, I can only request an honorable discharge.”

990722:	Medical evaluation by G_ A. G_, Health Care Evaluator and CAPT B. L. G_, MC, USN, NARED, Naval Hospital, Camp Pendleton:  
	Reason for Request:  Addictions Consultation.  This 24 year old divorced male Sgt USMC with 6 years continuous service was referred by CMD for +DUS LSD.
	Impression:  Substance related event/incident.  +DUS LSD – Denies knowledge of use.  
	Recommendation:  1. Process for Sep per MCO P5300.12A
2.	Counseled on VA changes.  3.  MDAC 4.  F/u w/SACO

990804:	Applicant notified of intended recommendation for discharge by reason of misconduct, specifically, Drug Abuse, with a characterization of service as under other than honorable conditions.  The specific basis for this recommendation was Positive Urinalysis results for Lysergic Acid Diethylamide.  Applicant informed the least favorable character of service possible was under other than honorable conditions.

990929:	Applicant advised of rights and having elected not to consult with counsel, elected the right to include written statements in rebuttal to proposed separation in lieu of a hearing before an Administrative Separation Board and the right to obtain copies of the documents used to support the basis for the separation.

990930:	Commanding Officer, 1^st Battalion, 11^th Marine Regiment, recommended to Commanding General, 1^st Marine Division, via Commanding Officer, 11^th Marine Regiment, that the Applicant be administratively separated from the Marine Corps by reason of misconduct, specifically, drug abuse with a characterization of service as under other than honorable conditions, and that the Applicant be administratively reduced to Lance Corporal.  The specific basis for this recommendation was the positive urinalysis results for Lysergic Acid Diethylamide.  Commanding Officer’s comments:  “Sergeant L_ was afforded the opportunity to defend himself through the Special Court Martial process.  He declined and offered a pre-trial agreement which included his guilty plea at a Summary Court-Martial and a waiver of his board subsequent to any Administrative Separation Procedure.  Although he professed his innocence and continues to do so in the statement that is enclosed with this he “voluntarily” chose to plead guilty.  Sergeant L_ has been a good NCO.  The unit was shocked and disappointed at the potential loss of someone who had shown such promise.  It is due to this very fact, that Sergeant L_ was a good NCO, that I am recommending his separation.  He knew better and possessed the maturity and judgment to make better choices.  He failed to do so and let both himself and this unit down in the process.  I have little doubt that Sergeant L_ is extremely sorry this incident occurred and that he is both ashamed and remorseful.  I also have little doubt that he is indeed guilty if the offense as charged.  This organization cannot afford to retain such an individual in a leadership position.” 

991022:	Commanding Officer, 11^th Marine Regiment, concurred with the recommendation that Applicant be discharged for illegal drug use with an other than honorable characterization of service.  Commanding Officer’s comments:  “Sergeant L_ (Applicant) has discredited both the Marne Corps and the Noncommissioned Officer ranks.  His reduction to E-4 was suspended by the Summary Court Martial officer, but this package will at least reduce SNM to a LCpl before exiting the Marine Corps.”

991102:	SJA review determined the case sufficient in law and fact.

991104:	GCMCA, Commanding General, 1^st Marine Division (Rein), directed the Applicant's discharge.

991119:	Applicant found medically qualified for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19991119 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).  

There is credible evidence in the record that the Applicant used illegal drugs.  The record indicates that Applicant agreed to plead guilty at Summary Court-Martial to illegal drug use in order to avoid the possibility of more severe punishment if found guilty at Special Court-Martial.  He also agreed to waive his right to an administrative discharge board.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  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.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 to consider mitigating the misconduct that resulted in the characterization of discharge.  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 additional evidence related to this 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 5420.174D 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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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