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USMC | DRB | 2005_Marine | MD0501186
Original file (MD0501186.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. MD05-01186

Applicant’s Request
The application for discharge review was received on 20050705. 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 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 20060131. 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 application and from an attached letter to the Board:

“So that I can reenlist to fight in Iraq.”

 “Humbly, I request that my discharge status be upgraded.

Having been discharged on February 26, 2004 with a discharge status of “ less than honorable ”, I respectfully request consideration for a discharge status upgrade .

Regretfully, my actions were less than that of a good Marine. I let my Country down, and most of all I let my fellow Marines down. Unable to carry my load when needed during their last deployment in Iraq, I felt shame and a sense of failure.

My return home was humiliating and disgraceful. My training was not utilized; my fellow Marines fought without me at their side; I had failed to complete my contract, and my boyhood dream of being a Marine was unfulfilled. I would have re-enlisted and served my Country with great vigor. Instead, a childish irresponsible action brought my dream to an abrupt ending.

I kept close watch on my Unit as they served in Iraq. And, it was heart breaking.
I returned to North Carolina (Camp Lejeune) to meet them when they returned. I
drove by myself and was faced again with time to reflect on my irresponsible
actions. I let my brotherhood of Marines and my family members down. Most of
all I let myself down.

Since my discharge I have been employed as a Bar Manager; Bartender; Club Security, and have been self employed in the lawn service business.

I believe that I have punished myself enough and that it is time for me to leave all my mistakes and my self pity behind. It is time to pick up my pack, lace up my boots and be a proud Marine that served his country and fought for freedom.

It is my hope that this discharge be upgrade is granted, as it is my sincere desire to re-enlist. I wish to fight for my country and the protection of others in Iraq along side my fellow Marines.
Semper Fi!
Sincerely,”

Documentation
 In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

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

          Inactive: USMCR           000914 – 000918  [Extracted from BIR]
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20000919             Date of Discharge: 20040226

 Length of Service (years, months, days):

 Active: 03 05 08
         Inactive: None

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

 Age at Entry: 22

 Years Contracted: 4

Education Level: 12                                 AFQT: 50

 Highest Rank: LCpl                                  MOS: 0351

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (9)                                Conduct: 3.9 (9)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, NATO Medal, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon, Presidential Unit Citation, Rifle Qualification Badge (Expert 2d Awd), Pistol Qualification (Expert).


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 :

021226:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of January because of weight control. Applicant chose not to make a statement.

030116:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of February because of weight control. Applicant chose not to make a statement.

030211:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of March because of weight control. Applicant chose not to make a statement.

030310:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of April because of weight control. Applicant chose not to make a statement.

030521:  NJP for violation of UCMJ, Article 91:
Specification: In that LCpl F_ (Applicant), on or about 18 May 03 aboard the USS NASSAU, was disrespectful towards Sgt V_ and Sgt B_ by ignoring them when ask to go get the duty logbook.
Violation of UCMJ Article 117:
Specification: In that LCpl F_ (Applicant) on or about 18 May 03 aboard the USS NASSAU, wrongfully smacked his teeth and threw his hands up in the air when ask to the duty logbook.
          Award: Forfeiture of $336.00 pay per month for 1 month ($336.00 pay per month suspended for 4 months, unless sooner vacated), restriction and extra duty for 14 days. Not appealed.

030731:  NJP for violation of UCMJ, Article 134:
         Specification: In that LCpl F_ (Applicant), on or about July 11, 2003 wrongfully pointed a unloaded weapon while dry firing at his head.
 Award: Forfeiture of $356.00 pay per month for 1 month, restriction and extra duty for 14 days. Not appealed.
030917:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 030911, tested positive for THC.

030922:  Applicant admitted to SARP. Admission Diagnosis: 303.90 ETOH Dependent.

031010:  Applicant discharged from SARP treatment this date as a treatment success.
Treatment Summary: Treatment services included group therapy, individual therapy, AA meetings, and didactic classes, including anger management, stress management, family roles, DWI laws and consequences, grief, disease process, medical aspects of alcohol and drugs, financial cost of alcohol use, blood alcohol level and tolerance communication, HIV/AID’s, 12 steps, relapse triggers, drug education, spirituality, tobacco awareness, resources/activities, nutrition, and goal setting.
          Patient was discharges successfully completing IOP treatment with a fair prognosis due to the patient’s vague plan to discontinue further alcohol and marijuana use and lack of a sober support network.
         Discharge diagnosis is alcohol dependence (303.90).
         Recommendations: Continued abstinence, two AA/NA meetings per week, and weekly visits with his Command SACO.
         Applicant informed substance abuse treatment, if needed after discharge, is available at a local Veterans Administration Medical Center nearest his home of record.

031014:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse with the least favorable characterization of under other than honorable conditions. The factual basis for this recommendation was illegal drug use as evidence by Naval Drug Lab message 171615Z Sep 03.
031014:  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.

031014:  Commanding Officer, 2d Battalion, 2d Marines, recommended to Commanding General, 2d Marine Division, via Commanding Officer, 2d Marines that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug use. The factual basis for this recommendation was illegal drug use as evidence by Naval Drug Lab message. Commanding Officer’s comments: “I have personally interviewed Private First Class J_ A. F_ (Applicant), reviewed the enclosures and spoken with his chain of command concerning his situation. Private First Class J_ A. F_ (Applicant)’s obtuse behavior and disregard for orders and regulations make him unfit for further service in the Marine Corps. His daily presence in the Battalion proves destructive to good order and discipline. I recommend that the respondent be administratively separated from the Marine Corps with an other than honorable characterization of service.”

031015:  NJP for violation of UCMJ, Article 112:
         Specification: SNM, at a unknown location, on or about 19 Sep 03, wrongfully used a illegal substance to wit: Marijuana.
 Award: Forfeiture of $645.00 pay per month for 2 months, restriction and extra duty for 45 days. Reduction to E-2. Not appealed.

 031113:  Counseling: Advised of deficiencies in performance and conduct (Concerning my illegal drug uses), necessary corrective actions explained, sources of assistance provided.

040209:  SJA review determined the case sufficient in law and fact.

040210:  Commander, 2d Marine Division, II Marine Expeditionary Force, informed the Commandant of the Marine Corps (MMSB) that the Applicant will be discharged 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 20040226 by reason of misconduct due to drug abuse (A) with a service characterization 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).

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’s service was marred by three nonjudicial punishment proceedings for violations of Articles 91, 112a, 117 and 134 of the UCMJ. The Applicant’s violations of articles 91 and 112a are serious offences. 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that he had committed a “childish irresponsible action.” While he may feel that his youth and immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. 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.

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 on this basis would be inappropriate.

The Applicant request an upgrade so that he may reenlist. 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. 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 Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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 .


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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