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USMC | DRB | 2005_Marine | MD0501089
Original file (MD0501089.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD05-01089

Applicant’s Request
The application for discharge review was received on 20050614. 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 20051102. 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:

“Dear Members of the Review Board,

I am requesting an upgrade of my discharge from the Armed Services of the United States because I have made significant changes in my life that have made me a better person.

Since being discharged from the Marines, I’ve maintained a full time job. I have followed through on the recommendations of the Marines and went through a Substance Abuse Rehabilitation program and I have been active in NA and AA meetings. I recently got married and I am now the proud father of a five month old son. I intend to go back to college to finish my Associates Degree in Criminal Justice. My dream is to become a law enforcement officer.

Prior to my discharge I had a drinking problem. When my unit returned from O.I.F. I stayed in the rear party to clean our equipment and watch over it until it was returned to the States. While I was there my closest friend in the platoon, who was also my gunner and squad leader, was discharged E.A.S. When I returned home I had also found out a good friend of mine was killed in action. I felt alone and depressed. I had trouble trusting anyone. I felt I couldn’t confide in anyone either. I was hanging out with the wrong crowds and drinking almost every night. Then I started drinking until I blacked out. I got worried about my drinking problem. I knew I needed help. I did what I learned from being in the Marines and went to my Platoon Sergeant. He always said, “ what happens in the platoon stays in the platoon.” I found out later that was not a true statement. He asked me if I did anything else and I couldn’t answer him honestly because I had been blacking out. He took me to my Company Commander and told him. I was then tested and cocaine was found in my urine. I received a non-judicial punishment of pay-grade loss, loss of rank, restriction and work duty for 45 days.

I trusted my platoon Sergeant but I felt cheated and betrayed by his behavior. Yes, I was disappointed in myself but I was proud to be a Marine. I later found out that my platoon Sergeant stated that based on my actions in Iraq, he wouldn’t serve with me in a war time situation again. His section was only with my section for one month when we were in Iraq and only after major combat had ended. My gunner, Corporal C_, requested that I get a NAM with a combat V because of my actions during the war. Many others in my platoon will tell you they would serve with me anytime. I did my job with honor. I was proud to be a Marine and to serve my country. I believe with your help I can finish getting my life back on the right track and be the best husband, father and US Citizen possible.

Thank for your time in reviewing this matter.

Sincerely,

B_ G_”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Marriage Certificate
Earning Statement dtd March 19, 2004
Earning Statement dtd March 4, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20020405 – 20020513               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20020514             Date of Discharge: 20031211

 Length of Service (years, months, days):

 Active: 01 06 28
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              none

 Age at Entry: 22

 Years Contracted: 4

Education Level: 13                                 AFQT: 67

 Highest Rank: LCpl                                  MOS: 0352

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (4)                       Conduct: 4.2 (4)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Combat Action Ribbon, Presidential Unit Citation, Sea Service Deployment Ribbon, National Defense Service Medal, Rifle Qualification Badge (Marksman), Piston Qualification Badge (Marksman).


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 :

020404:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

020405:  Drug (cocaine) waiver granted at CG Region level. Drug (marijuana) waiver granted at RS level.

031003:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 030929, tested positive for cocaine.

031016:  Applicant advised of address and telephone number of Veterans Administrative Medical Center nearest his home of record.

031020:  Substance Abuse Evaluation Report: Applicant evaluated as a result of a command referral. Case reviewed by a credential provider on 20 Oct 03. Diagnosis: Alcohol Dependence and Cocaine Dependence.
         Recommendations: Intensive Outpatient Treatment; Remain abstinent from use of all substances; Weekly visits with Unit SACO until treatment; Should be held strictly accountable for actions; and May be processed for administrative separation for illicit substance use.

031021:  Battalion NJP for violation of UCMJ, Article 112a: At unknown location, on or before 24 September 2003, SNM wrongfully used a controlled substance to wit: cocaine 234 NG/ML.
         Award: Forfeiture of $645 per month for 1 month (suspended for 6 months), restriction for 45 days, extra duty for 45 days (35 days suspended for 6 months), reduction to E-2. Not appealed.

031024:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was the positive results of your urinalysis conducted on 24 September 2003, and Battalion NJP on 21 October 2003, as follows: Art. 112a – At unknown location, on or before 24 September 2003, SNM wrongfully used a controlled substance to wit: Cocaine 234 NG/ML.

031024:  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.

031112:  Commanding Officer, 2d Tank Battalion, 2d Marine Division, recommended Applicant’s discharge with an under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: “[Applicant’s] actions display a lack of loyalty, discipline and moral courage, as well as blatant disregard to the Marine Corps’ policy and my personal order to all Marines in the battalion on 12 June 2003 concerning the use of illegal drugs. Through his use of illicit drugs, Private First Class G_ (Applicant) displayed a clear disregard for the rules and regulations that govern the United States Marine Corps, and retention would in my opinion be detrimental to good order and discipline.”

031122:  SJA review determined the case sufficient in law and fact.

031124:  Forfeiture of pay and extra duties awarded at NJP on 031021 vacated due to continued misconduct.

031124:  GCMCA, Commander, 2d Marine Division, II Marine Expeditionary Force, directed the Applicant's discharge with an under other than honorable conditions by reason of misconduct due to drug abuse pursuant to paragraph 6210.5 of the reference.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031211 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 Applicant contends that his service characterization of Under Other Than Honorable Conditions is inequitable based on post service accomplishments. The Applicant informs the Board that he has made significant changes in his life that has made him a better person. He has completed a Substance Abuse Rehabilitation program; he has been active in NA and AA meetings; he has recently gotten married and has a five-month old son; and he intends to go back to college to pursue a law enforcement career. While the Board respects the Applicant’s claim that he has changed his life, it is worth reminding the Applicant that his record of service was not honorable. There is credible evidence that the Applicant used a controlled substance, which warrants mandatory separation from service. To be sure, the Applicant service record contains non-judicial proceedings for violation of UCMJ Article 112a Wrongful use of controlled substance (cocaine).

While there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the Marine Corps, the Board 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct. At this time, the Board found that the Applicant’s statements concerning post-service conduct and accomplishments, without documented evidence, do not mitigate the offense for which he was discharged. No relief is granted on this basis.

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

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