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USMC | DRB | 2005_Marine | MD0501153
Original file (MD0501153.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. MD05-01153

Applicant’s Request
The application for discharge review was received on 200050628. 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 20060124. 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 4 to 1 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 application and/or from an attached document/letter to the Board:

“The issue is that I would like to upgrade my discharge to honorable. Please refer to cover letter and all 18 enclosures. Theese are all the documents relavent to my issues. Please review my entire package. The cover letter will tell you the story and guide you through the enclosures! Thank you for you attention. Please make the correct decision. *My father passed away shortly after my discharge.

 I, D_ F. S_(Applicant) a United States Marine, have served in active duty from October 22, 2001 to August 23, 2004. I was a rifleman/6531 ordnance technician. My medals and ribbons include: (1) Combat Action Ribbon (2) Global War On Terrorism Expeditionary Medal (3) SEA Service Deployment Ribbon (4) National Defense Service Medal (5) Presidential Unit Citation. My awards page is located in enclosure (8). I also received the ranks of Lance Corporal and Corporal meritoriously. My meritorious Corporal package is located in enclosure (2). I spent eight months in Kuwait and Iraq supporting operation Iraqi Freedom and Enduring Freedom; the dates are in enclosure (5). I was assigned to FARP Team Bravo (Forward Arming Refueling Point). We convoyed north through Iraq for 36 days, some of the cities we passed through included: Rammala, Nasiriyah, Alkhut, Baghdad, and Tikrit. I was one of the first Marines to cross the border into Iraq in March of 2003.

I am asking for my case to be reviewed so I can receive my Honorable discharge. I suffer from Post Traumatic Stress Disorder (PTSD), Bilateral Knee condition, and allergic rhinitis. Over the last three years I developed this knee condition, which is fully documented in my medical records. It was caused from the wearing of boots, both steel toe and non-steel toe. The constant kneeling down and picking of ordnance, not to mention the endless miles I have ran and hiked with a fifty pound pack on my back. I can go on how the years in the Marines have caused these problems but it is already fully documented in my medical records. When I returned from Iraq some months passed and a series of events occurred including my positive urinalysis test, for the record there was only positive urinalysis and the day that I was informed of it I gave a voluntary urinalysis, which was negative. My life plummeted into a downward spiral. I began to see a psychologist because my friends and family were concerned about my 360-degree turn around upon returning from Iraq. I then found out I was suffering from the symptoms of PTSD. You can find a few of my appointment dates in enclosure (12).

By then it was too late, I had gone from being a meritorious Marine to facing an Other Than Honorable discharge from the United States Marine Corps, for one urinalysis failure. I lost my meritorious promotion to Corporal and my Navy Achievement Medal. I was forced to plead guilty to Article 112 A under the UCMJ or else I would have faced Court Marshall, which is far worse. I was reduced to the rank of PFC; I spent 45 days in restriction/extra punitive duty, and 2 months of half pay. During the duration of all this my father was terminally ill. I have a Humanitarian Transfer package in enclosure (4). I had been requesting for a transfer since I had returned from Iraq in mid October, my Staff NCOs told me that there was no such thing as a Humanitarian Transfer Package. Instead they had me fill out a special request form, which is in enclosure (9). If you notice the date I signed it, was October 22, 2003. My Staff Sergeant did not send it up through the chain of command to obtain approval/disapproval; he kept it in his desk and had me believing that it was being taken care of for four months. He said that I was an asset and could not replace me. I was trying to transfer to a non-deploying unit so I could visit my father when I had leave or during the weekends. I was not told the truth! I had even made an attempt to add my father as a dependent; this is in enclosure (10). This was so my father could have better medical insurance, because he is disabled and unable to work.

I did that while I was overseas in Iraq, but being there made it almost impossible to get all the necessary paperwork together, so I held off, not to mention that my immediate Staff NCOs were not supportive. My Staff NCOs were well aware of my father’s medical condition and upon arrival to the USA they misled me into believing that there was no way, shape or form that I would be able to help my father unless I was out of the Marines or at home. During the time that my father was terminally ill and I was trying to help him either by not deploying or being stationed in Northern California. I was suffering from PTSD I did not know what else to do, I had no one to guide me because my Staff NCOs misled me by giving me false information. I began doing things that were uncharacteristic of myself such as: excessively drinking, pushing all the important people out of my life. I was extremely angry, depressed, I was unable to sleep at night because of anxiety, paranoia, nightmares etc. I had a problem with substance abuse; my girlfriend of 3 years left me during this time due to my condition. She is still out my life. During my 45 days of restriction all this was happening. My restriction form is in enclosure (11).

I was such an asset that they would not release me to another command to take care my family problems. Perhaps if my Staff NCO would not have misled me and I would have filled out the Humanitarian Transfer Package before the whole mess, I would still be in the Marine Corps as a Corporal training younger Marines. Would that still count as an asset? I believe I was discharged unfairly. When I was doing great, they loved me and I was an asset, but when my father got bad and they continued to mislead me, I could not take it anymore and things hit rock bottom. I also had a secret clearance while I was in, that is in enclosure (6). So when I failed the urinalysis I could no longer handle ordnance, but they continued to have me work on aircraft and do maintenance. Then right before my unit deployed without me then they processed me for separation. My urinalysis failure occurred in February 2004 and I was discharged at the end of August 2004. Six months later while my father was sick and I was suffering from PSTD. If I was working on aircraft and doing maintenance for six months after the incident and only one-urinalysis failure why could I not finish out my contract of only eleven months left? I know of plenty of Marines who were allowed to finish out their contract with numerous urinalysis failures. I believe that because of the PSTD, my father and the fact that I could not handle ordnance any more that I was discharged without real consideration. If you look at enclosure (13) You will see my Recommendation for separation papers and my Commanding officer states “Private First Class S_ can not remain in the aviation ordnance technician field”. The other papers in enclosure (13) are my notification of separation in case you may need them.

Since my discharge I have done only positive things for myself. I went to the college of San Mateo and passed all my courses. If you look at enclosure (14) you will find proof of that. I have also been visiting a psychologist for my post traumatic stress disorder. His name is J_ I. B_, ph.D. He wrote me a letter of recommendation. You can find that in enclosure (15). I am also in the process of becoming a life time member of the Disabled American Veterans. You can find that piece of info in enclosure (16) Immediately after my discharge I wrote to the Department of Veterans Affairs in Oakland California. The VA granted me my benefits and found me fifty percent disabled due to the post traumatic stress disorder. The VA decision is located in enclosure (18). I have an honorable discharge for VA purposes only. I still can’t receive my GI bill that I put 1800 dollars towards for my education. It also doesn’t do anything for jobs, I still have that general under other than honorable. This is why I so badly need for you to upgrade my discharge. I have also enrolled in Vocational Rehabilitation with the VA, the proof of that is in enclosure (17) I am doing everything I can to turn this bad situation into good and now it is up to you.

I am a combat veteran. I fought with men who were friends of mine who lost their lives for our country and left behind wives, children, siblings and parents. I want to celebrate Veterans Day proudly every year. I feel hopeless as a civilian, I am accustomed to the Marine’s intense way of life, it is tough to adjust as & 21 year old man coming out of the Marine’s with no benefits at all, an undesirable, a knee condition, the PTSD which I still suffer from, no college or funds to attend college, and nothing but memories of Iraq.

If you could please consider my case and grant my request it would be the first step to a fresh start and the beginning of my career as a Fire Fighter. I have a couple of letter of recommendations, those are in enclosures (1) and (3). My misfortune in the Marines may cost me the rest of my life, so I ask you to look at me as the meritorious Marine I am and respect the fact that I fought bravely for my beloved Country and help me take that first step to being an upstanding citizen helping people. I will make an ideal Fire Fighter, so please let me fight for you again, but this time in our country in a different way! I don’t only want this for me but for my future family, for them to recognize that their father is a Combat Veteran. I will never forget what happened in Iraq, no one can take away the fact that it happened. I can only ask for you to help by granting me my Honorable discharge, the Honorable discharge I have earned. I am a United States Marine, a Combat Veteran. So please make the right decision. Thank you.

Sincerely yours,

D_ F. S_ (signed by Applicant)”
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)
Jurat with affiant statement, dtd June 17, 2005
Letter from SGGT V_, dtd August 20, 2004
Meritorious Corporal Package, dtd February 18, 2004 (24 pages)
Letter from Cpl E. A. C_, dtd October 1, 2004
Humanitarian Transfer Package, dtd May 23, 2004 (11 pages)
Combat History, dtd June 23, 2004
MCTFS Basic Training record, dtd August 20, 2004
Statement of Service, dtd February 6, 2003
Awards Page, dtd August 20, 2004
Special Request/Authorization Form, dtd October 22, 2003
Dependent Request Form, undtd
Restraint Muster Record, dtd March 22, 2004
Patient Appointments for Mental Health Services from May 7, 2004 to June 28, 2004
Recommendation for separation (8 pages)
College of San Mateo classes (2 pages)
Letter in support of upgrade from J_ I. B_, Ph.D., dtd April 26, 2005
Letter to the Applicant from Disabled American Veterans, dtd November 15, 1004
Letter from Department of Veterans Affairs, Vocational Rehabilitation and        Employment Division, dtd June 8, 2005 (not signed)
Department of Veterans Affairs rating decision, dtd March 2, 2005 (4 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20010503 - 20011021      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20011022             Date of Discharge: 20040823

 Length of Service (years, months, days):

 Active: 02 10 02
          Inactive: None

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

 Age at Entry: 18

 Years Contracted: 4

 Education Level: 12                                 AFQT: 51

 Highest Rank: LCpl                                  MOS: 6531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (5)                                Conduct: 4.3 (5)

 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, Sea Service Deployment Ribbon, National Defense Service Medal, Presidential Citation, Rifle Sharpshooter Badge

*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 :

010502:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

010503:  Pre-service waiver for drug use granted.
040211:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 040206, tested positive for THC.

040302:  Applicant examined at Naval Hospital Camp Pendleton. Applicant brought to clinic by his OIC because the Applicant sought counseling the previous evening. Applicant states that he unknowingly ate some brownies and marijuana the previous week. Applicant also describes concern over his father’s health. Applicant describes feeling overwhelmed and uncertain about his future. Applicant states that he will not harm himself or others.

040303:  Applicant examined at Naval Hospital Camp Pendleton, CA, Mental Health Department. Applicant admits to drinking 6 beers a night and to seeing a psychologist at age 17 for temper and depression.

040310:  Applicant examined at Naval Hospital Camp Pendleton, CA, Mental Health Department. Applicant present for a follow-up appointment.
         Diagnostic Impression:
Axis I: Adjustment Disorder with Depressed Mood.
         Axis II: No diagnosis
         Applicant is psychologically fit for full duty at this time.

040322:  Applicant acknowledged understanding of eligibility but not recommended for promotion to Cpl due to pending nonjudicial punishment. Applicant chose not to make a statement.

040322:  NJP for violation of UCMJ, Article 112a: In that LCpl D_ F. S_(Applicant), did, on or about 27 Jan 04, wrongfully use Marijuana.
         Award: Forfeiture of $668 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Not appealed.

040324:  Applicant notified of intended recommendation for discharge by reason of misconduct due drug abuse with a characterization of service as under other than honorable conditions. The factual basis for this recommendation was positive urinalysis as evidenced by the Navy Drug Lab Message R112137Z Feb 04, which resulted in a nonjudicial punishment for wrongful use of marijuana.

040324:  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040420:  Applicant examined at Naval Hospital Camp Pendleton, Orthopedic Clinic for evaluation of left knee pain.
Assessment: Patellofemoral syndrome, left knee.
         Plan: Applicant instructed on closed chain quadriceps rehab and trial of Chondroiton and Glusamine, continue full duty.

040428:  Applicant examined at Aerospace Medicine Department, Marine Aircraft Group 39 Medical. Applicant found physically qualified for separation.

040430:  Counseling: Advised of deficiencies in performance and conduct (On 22 Mar 04, charged and found in violation of Article 112a of the UCMJ.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.
040505:  Medical Officer’s diagnosis provided by Flight Surgeon, Marine Light Attack Helicopter Squadron 169. Applicant does not demonstrate the signs for or meet the criteria for cannabis (marijuana) dependence. Applicant’s marijuana use appears to be an isolated event.

040529:  Commanding Officer, Marine Light Attach Helicopter Squadron 169 recommends to Commanding General, 3d Marine Aircraft Wing, via Commanding Officer, Marine Aircraft Group 39, the Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

040623:  Applicant counseled at Consolidated Substance Abuse Counseling Center, Camp Pendleton CA. Applicant signs a Client Refusal of Medical Officer’s Evaluation Statement. Applicant refused medical officer’s evaluation. Applicant understands that there is no Veterans Administration Hospital (VAH) addiction treatment available in conjunction with the discharge.

040630:  Commanding Officer, Marine Aircraft Group 39 recommended Applicant’s discharge under other than honorable conditions.
040811:  SJA review determined the case sufficient in law and fact.

 040818:  GCMCA, Commander, 3d Marine Aircraft Wing 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 20040823 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).

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. 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 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 . In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

 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. T he Applicant’s service was marred by nonjudicial punishment proceedings for violations of 112a (wrongful use of controlled substances) of the UCMJ. 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 the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, the Applicant alleged that he was forced to plead guilty to Article 112a or he would have faced a court martial. The record, however, contains no evidence of any wrongdoing by the government or anyone in the discharge process. The Applicant was notified by the Commanding Officer of the recommendation for his administrative separation by reason of misconduct due to drug abuse with a characterization of under other than honorable conditions. The Applicant consulted with counsel and waived all rights except the right to obtain copies of the documents used to support the basis for the separation. The Applicant was found to be physically qualified for separation by competent medical authorities. The GCMCA directed the Applicant’s discharge. The Board determined that the Applicant’s discharge was regular in all respects. Relief denied.

The Applicant contends that his problems in the Marine Corps can be attributed to several factors to include his concern for his ill father, PTSD, excessive drinking, and a substance abuse problem. While he may feel that these factors were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. Specifically, a family member’s illness does not justify misconduct. While the Applicant was diagnosed with an Adjustment Disorder with depressed mood, he was found to be psychologically fit for full duty. Further, the Applicant’s statements regarding his substance abuse are inconsistent, stating that he unknowingly consumed brownies with marijuana but that he did have a substance abuse problem. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided proof of continuing education, a letter from a psychologist, proof of membership in the DAV, and a Department of Veterans Affairs Rating Decision, as documentation of his post-service. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of a verifiable employment record, documentation of community service, credible evidence of a substance free lifestyle , and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Therefore, no relief will be granted.

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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