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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD06-00750

Applicant’s Request

The application for discharge review was received on 200060511.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant designated a civilian attorney as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070215.  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 - ISSUES AND DOCUMENTATION

Decisional Issues

Propriety:  Applicant not properly counseled regarding deficiencies.
Improper rights notification resulted in uninformed waiver of administrative board
  
Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Service 2 (2) and 8 (2))
Eight page letter from Applicant’s attorney
One hundred thirty-four pages from Applicant’s service record (some duplicates)
Letter from Capt C. D. B_ USMCR to Law Office of V_ T_ and B_, dated November 8, 2005 (3 pages)
Statement from Applicant, dated October 23, 2005
Applicant’s check in/check out sheet (2 pages), dated April 19, 2004
Personal award recommendation for Applicant, dated October 10, 2003 (5 pages) (3)
CDRCJTF7 DOHA Kuwait KU msg 052000Z May 03 (2 pages) (2)
Applicant’s chronology of military service (5 pages)
Platoon 3086, Recruit Training Graduation Program, dated September 29, 2000
Certificate of Completion of Rifleman course, Infantry Training Battalion, dated December 7, 2000
Certificate of Commendation, dated September 17, 2002
E-mail from Gunnery Sergeant M_ to Applicant’s parents, dated February 16, 2003
Eight pictures of Applicant
Navy and Marine Corps Commendation Medal certificate, dated October 15, 2003
CMC msg 312200Z Oct 03 (3 pages)
Good Conduct Medal criteria description
Newspaper articles
	Hold in your Thoughts All Heroes proudly serving America!
	Bring it all back home, Part II
	Field Notes continued from Page 2
	Portion of The Canadian Record front page dated January 30, 2003
	Portion of The Canadian Record front page dated May 8, 2003
	Field Notes, Bring it all back home
From Iraq to Canadian via Washington DC: Corporal C_ comes home, dated May 15, 2003 (2 pages)
	Lance Corporal C_ Earns Marine Expeditionary Force commendation
	Portion of The Canadian Record front page dated November 27, 2003
DD Form 149, dated March 13, 2006
Picture of M. W. H_, 33rd CMC

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20000322 - 20000704	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000705		Date of Discharge:  20040628

Length of Service (years, months, days):

Active:    03  11  24  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  77 days

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  61

Highest Rank:  Cpl				MOS:  0311 (Rifleman)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (14)				Conduct:  3.8 (14)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Navy and Marine Corps Commendation Medal (Combat V), Combat Action Ribbon (Iraq), Marine Corps Good Conduct Medal, Global War on Terrorism Expeditionary Medal, Sea Service Deployment Ribbon (2d Awd), National Defense Service Medal, Presidential Unit Citation, Certificate of Commendation, Rifle Qualification Badge (Expert 4th Awd), Pistol Qualification Badge (Sharpshooter).

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:

000320:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

020322:	Counseling:  Advised of deficiencies in performance and conduct (SNM was UA from class while attending Advanced Mortars Leadership Course 3-02 on 020313 and 020314.  SNM was dropped from the course because of his careless actions).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030807:	Medical entry: Battalion Aid Station, 1st Battalion, 2nd Marines, LT J. H. S_, MC, USNR:  22 y/o male (Applicant) recently returned from Iraq (May 2003).  Since then pt (illegible) to have daily nightmares of Iraq grd war, can’t sleep so he started to drink so he can sleep.  No prior history of drinking problem or mental health problems….increased ETOH, per pt he drinks 12 – 24 beers/night.  Denies SI, HI, A/V hallucinations.
	A:  MDD and PTSD, ETOH dependency
	P:  Division psychiatry eval
	Consultation to Psychiatry:  low energy, difficulty sleeping, loss of interests, poor concentration, since early return from Iraq in May.  Has started drinking since return, often to point of passing out as coping mechanism and to allow patient to sleep.  Often has nightmares about people he killed in the war….
	Provisional diagnosis:  new onset MDD vs. PTSD.
	[Extracted from Applicant’s submission.]

030811:	NJP for violation of UCMJ, Article 86 (3 specs):
	Specification 1: Did, on or about 0701, 030805, without authority, absent himself from his appointed place of duty and did remain so absent until on or about 0900, 030805.
	Specification 2: Did, on or about 1630, 030805, without authority, go from his appointed place of duty.
	Specification 3:Did, on or about 0616, 030806, without authority, absent himself from his appointed place of duty and did remain so absent until 1115, 030806.
	Award:  Forfeiture of $388.00 per month for 1 month, restriction and extra duty for 14 days.  Forfeiture, restriction and extra duty suspended for 6 months.  Not appealed.

030812:	Medical entry:  Division Psychiatry, 2d MARDIV, II MEF, CDR R. D. P_, MC, USN:  …patient (Applicant) verbalized...”I need help.”  Pt has been experiencing decreased sleep, increased ETOH, decreased interest in being a Marine, decreased motivation, decreased appetite, anhedonia since May when he returned from OIF.  Pt was returned early to attend functions in Washington, D.C.  He expresses remorse about being responsible for the deaths of 700 people as the mortars section leader.  Describes himself as a very caring person that wouldn’t hurt anyone.  States that he has no problem killing people while he was doing it, only now that it’s over, reports seeing faces and scenes, particularly women and children, when he’s trying to sleep.  Denies recurrent dreams or nightmares.  Described one episode of intoxication during which he suffered a “flashback.”  Pt also reports death of best friend yesterday by suicide and another friend 1 year ago by suicide.  Denies SI/HI.  During, interview, Pt was somber until he talked about “seeing” the Iraqis, at which point he became excited and used expletives in his descriptions.  Pt’s command described him as an outstanding Marine and meritoriously promoted him to corporal.  Recently he has been NJP’d for being UA and was UA the following day….”I’ve been having difficulty dealing with…what happened in Iraq…It’s been affecting me personally and professionally…I can’t sleep…(illegible)…mood swings…don’t care anymore…I feel better talking about it…”
	Imp:  Axis I:  PTSD, by history
	Axis II:  None.
	Axis III:  History of MCL and ACL repair
	It is felt that the pt. may benefit from psychotherapy.
	Plan:  1.  Full duty.  2.  Pt given an opportunity to abreact in a relaxed state.  3.  Follow-up appt. …on 030815.
	[Extracted from Applicant’s submission.]

030813:	Forfeiture, restriction and extra duty awarded and suspended at NJP on 030811 vacated due to continued misconduct (UA from 0545 – 0830, 030812).

030818:	NJP for violation of UCMJ, Article 92: Did, on or about 030812, violate a lawful general order, by wrongfully wearing a tongue stud.
	Award:  Forfeiture of $764.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  Forfeiture for 1 month suspended for 6 months.  Appealed.

030911:	Applicant notified of decision on appeal.  No further information in service record.

030922:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 92: In that SNM did on or about 1500, 030910, failure to obey a lawful order, to wit: MCO P1020.34, by wrongfully wearing a tongue stud.
	Charge II: violation of the UCMJ, Article 134 (5 specs):
	Specification 1: In that SNM did on or about 0701, 030824, break restriction, by failing to sign in for muster at the time prescribed.
	Specification 2: In that SNM did on or about 0901, 030824, break restriction, by failing to sign in for muster at the time prescribed.
	Specification 3: In that SNM did on or about 0901, 030907, break restriction, by failing to sign in for muster at the time prescribed.
	Specification 4: In that SNM did on or about 1801, 030912, break restriction, by failing to sign in for muster at the time prescribed.
	Specification 5: In that SNM did on or about 0701, 030913, break restriction, by failing to sign in for muster at the time prescribed.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence: Confinement for 30 days, reduction to E-2.
	CA action 030922:  Sentence approved and ordered executed.

031210:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 031205, tested positive for THC.

040213:	NJP for violation of UCMJ, Article 112a: Did on or about 031203 wrongfully use a controlled substance, to wit:  THC.
	Award:  Forfeiture of $596.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Not appealed.

040222:	Applicant enters pre-trial confinement.

040406:	Medical entry:  Camp Lejeune, North Carolina Brig, LT G_ L. F_, MC, USNR:  Pt (Applicant) currently on Zoloft 150 mg per day.  Had good results, but reports that the last couple of weeks he has been very edgy and almost to the point of picking fights.  Will increase dos to 200 mg per day (has enough supply for 11 days).  Re-eval in 1 week – if no improvement will consider changing meds.  
	[Extracted from Applicant’s submission.]

040416:	Special Court Martial:
	Charge I: violation of the UCMJ, Article 86: Failure to go.
	Charge II: violation of the UCMJ, Article 134: Breaking restriction.
	Findings: to Charge I and II and specifications thereunder, guilty.
	Sentence: Confinement for 54 days.
	CA action.  No further information found in service record.

040504:	Applicant acknowledged Statement of understanding for substance abuse treatment at a Veterans Administration Medical Center.

040507:	Clinical Director, Substance Abuse Rehabilitation Program informs Commanding Officer, 1st Battalion, 2nd Marines, that Applicant evaluated on 040504 and no diagnosis was made.
	Recommendations:  IMPACT to be scheduled.  Remain Abstinent from use of all substances.  Individual should be held strictly accountable for actions.  Individual may be processed for administrative separation due to possession of illicit drugs.

040515:	Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct.  Applicant informed the least favorable character of service possible was as under other than honorable conditions.

040515:	Applicant acknowledged recommendation for separation by reason of misconduct due to pattern of misconduct.  Indicated on acknowledgement of rights form that he had consulted with counsel, Capt B_, and elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040515:	Commanding Officer, 1st Battalion, 2nd Marines, recommended to Commanding General, II Marine Expeditionary Force, via Commanding Officer, 24th Marine Expeditionary Unit, that Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct.

Not dated:	SJA review determined the case sufficient in law and fact.

040609:	GCMCA, Commanding General, II Marine Expeditionary Force, directed the Applicant's discharge under other than honorable conditions with primary basis for discharge of misconduct due to drug abuse.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040628 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 Board presumed regularity in the conduct of governmental affairs (D).

There is credible evidence in the record that the Applicant used illegal drugs, resulting in nonjudicial punishment.  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.  In addition, the Applicant’s service was marred by a retention warning, 2 nonjudicial punishment proceedings for violations of Articles 86 and 92 of the UCMJ, a summary court-martial for violations of Articles 92 and 134 of the UCMJ, and a special court-martial for violations of Article 86 and 134 of the UCMJ.   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 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.

In regards to the Applicant’s evidence and argument in support of his claim to have not understood the significance of the Notification of Recommendation for Administrative Separation and associated Acknowledgement of Rights form, the Board determined that it was insufficient to overcome the presumption of regularity attached to the documentary evidence of a proper and equitable discharge.  The Board found it more likely than not that the Applicant’s familiarity with rights advisement and consequences thereof, in light of his substantial experience with NJP and courts-martial proceedings, would enhance his appreciation for the significance of the documents he was signing.  The Applicant’s description of events, taken at face value, supports the conclusion that he responded to the notification of recommendation for administrative separation with a degree of carelessness one would not expect from a Marine who knew he was facing mandatory separation processing and wanted to “fight” being discharged.  The Board did note a technical error in the Acknowledgement of Rights form.  While the Notice of Recommendation for Administrative Separation indicates the bases for separation as misconduct due to drug abuse and misconduct due to pattern of misconduct, the Acknowledgement of Rights form lists only misconduct due to pattern of misconduct.  While an error, the Board determined that the Applicant was not prejudiced thereby as the evidence overwhelmingly demonstrates that the Applicant knew he faced mandatory administrative separation processing for drug abuse.  Therefore, the error does not warrant relief.

Although not the primary basis for discharge, the Board noted in regard to the Applicant’s propriety claim that he had not been properly counseled regarding the recommendation for separation on the basis of misconduct due to a pattern of misconduct, that he had been properly counseled on 20020322.  While it may be the usual sequence of events in most cases, there is no requirement, for the purpose of administrative discharge based on misconduct due to a pattern of misconduct, that the required counseling occur only after an incident of misconduct resulting in disciplinary action.  In the Applicant’s case, he was properly counseled regarding an unauthorized absence which resulted in his being dropped from a course of instruction.  That such counseling proved ultimately ineffective in preventing further acts of misconduct does not mean that it was insufficient in meeting regulatory requirements.

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.  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.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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