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USMC | DRB | 2005_Marine | MD0501229
Original file (MD0501229.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD05-01229

Applicant’s Request
The application for discharge review was received on 20050718. 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 20060406. 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:

“My discharge was inequitable because it was based on one isolated incident in my eighteen months of service. My discharge was characterized by my association with another service member, being titled as aiding and abetting. With the exception of this incident, my entire military record contains only good marks including, but not limited to, my Rifle Expert Badge, Combat Action Ribbon, Sea Service Deployment Ribbon and Meritorious PFC.”

Applicant’s Remarks, Item #16 on the DD Form 293:

“ This incident took place in my presence, by not my awareness. Once I found out that this other Marine was consuming drugs I understood it as my obligation to handle the situation at my level, as I was told by the Marines in my chain of command. Had I been instructed on a different approach to such a serious problem the outcome of this situation would have been a lot more successful for the Marine Corps as well as the individuals directly involved in this case. Not a day goes by that I do not regret my actions towards this situation. Although it had been such a grief period in my life because of my assignment overseas, I do not wish to excuse any of my mistakes as they are factual as the marine corps itself. I only request an upgrade of my characterization as an understanding of my true efforts in succeeding in the Marine Corps. This experience has given me a broader knowledge base as well as a good life lesson that strengthens me as a student, an employee, and a leader.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20011031 – 20020721               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20020722             Date of Discharge: 20040121

 Length of Service (years, months, days):

 Active: 01 05 30 (Does not include lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None days
         Confinement:              15 days

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 55

 Highest Rank: PFC                                   MOS: 0352

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NA*                  Conduct: NA*

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

*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 :

011029:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

020723:  Commanding General signed waiver control #000221541 for defect in the Applicant’s case.

030924:  1 st Tanks, BAS, MCAGCC, 29 Palms, CA. Applicant referred to BAS by chaplain and examined by Medical Officer. SI occasionally. HI daily. Applicant reports daily thoughts of killing someone, no specific threat.
         Diagnosis: Adjustment disorder, multiple stressors, suicidal/homicidal thoughts. Applicant contracts for safety. Applicant is not currently considered a danger to self/others. Will consult to pscyh for further eval. Examined by LT M_ W_, MC, USNR.

031027:  Naval Hospital Twentynine Palms Mental Health Services Report. Applicant examined after a self-referral for help with depression.
         Diagnosis: Axis I: Major Depressive Disorder, mild severity, R/O alcohol abuse.
         Axis II: No diagnosis.
         Axis III: No diagnosis.
         Axis IV: Routine military stressors and return from combat relationship concerns.
         Axis V: Current GAF: 61-70.
         Treatment plan: 1. Fit for duty and responsible for his actions.
2.       Discussed diagnosis and treatment options. Recommend start of SSRT consider Paxil 20 mg and monitor for effectiveness.
3.       Did the Planned Dream Outcomes intervention today and I gave him a journal to write up.
4.       Individual follow up also.
5.       Schedule SACO eval.
031119:  Summary Court-Martial.
         Charge 1: violation of the UCMJ, Article 112a:
         Specification 1: Did on or about 24 October 2003, aid and abet LCpl S_, in wrongfully possessing marijuana. Plea: Guilty.
         Specification 2: Did on or about 24 October 2003, aid and abet LCpl S_, in wrongfully using marijuana. Plea: Guilty.
          Finding: to Charge and the specifications thereunder, guilty.
          Sentence: Forfeiture of $709.00 per month for 1 month, reduced to E-1 and confinement for 15 days.
         CA action 031119: Sentence approved and ordered executed.

031126:  Counseling: Advised of deficiencies in performance and conduct (Violation of Article 112a, wrongful use and possession, etc., of a controlled substance. Specifically possession of (THC) as stated in a CID investigation of 18 November 2003.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.
031126:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with a characterization of service of under other than honorable conditions. The factual basis for this recommendation was the Applicant’s aiding and abetting of LCpl S_ in obtaining marijuana (THC) as evidenced by (Applicant)’s confession to CID of November 17, 2003.

031203:  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.

031210:  Commanding Officer, 1 st Tank Battalion, recommend to the Commanding General, 1 st Marine Division that the Applicant be discharged with an under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: “On 17 September 2003 CID notified this command of Private N_ (Applicant)’s involvement in aiding and abetting another Marine in obtaining drugs. His interview with CID was fruitless. He would not give up the name of the drug supplier, a friend in his eyes. This event is the only negative mark in his record, perhaps due to his limited time in the Corps. His immediate chain of command believes he has a solid work ethic and that he performs adequately at work. I interviewed Pvt N_ (Applicant) on 5 December. What I saw was not impressive. He is a 19-year old Marine from Hemet, California. He is fourth of five children born of his parents. His mother and father divorced while he was in middle school. His father lives in San Bernardino; his mother remains in Hemet. Pvt N_ (Applicant) has been depressed about his family life and the lives of his peers in Hemet for some time. Both his parents have financial problems and the mother’s life is particularly distressing for him. His high school friends in Hemet appear to be going nowhere in life. They have odd jobs and no goals. Pvt N_ (Applicant) joined the Marine Corps for the discipline and honor. He began smoking marijuana in high school sometime during his sophomore/junior year, he does not remember exactly. He played baseball while in school. He enjoyed boot camp and SOI. He is proud of his performance during the war. Upon returning from the war he spent weekends and leave in Hemet and has become depressed as all those he is close to have unimpressive lifestyles. One of his friends recently died in an auto accident. He enjoys being in TOW platoon although he has little love for his sergeant. He believes his corporals and chain of command treat him fairly. Pvt N_ (Applicant) admits that his illegal drug involvement was “stupid” and that he has been through many briefs and classes outlining the Marine Corps stance on drug cases. He knew the battalion conducted frequent urinalyses. Regardless, he drove a fellow Marine to Hemet to obtain marijuana and destroyed that Marin’s budding career. He did not believe he would be caught.
During our interview, Pvt N_ (Applicant) mentioned he was sorry for disappointing the command. He never once said he regretted his involvement with illegal drugs. He never once said he would stop associating with his Hemet friends. He did repeat often that his personal life was “confused” and that he was constantly depressed. Thoughts of suicide have crossed his mind some time ago. He is satisfied with the care the Base mental health clinic has given him and appreciates the efforts of Dr. D_, the base psychiatrist. He is on prescription drugs for his depression. I believe Pvt N_ (Applicant) has personal issues that are beyond the scope of the command to address. His motivation level is extremely low and the root cause appears to be his family life and hometown friendships. I do not see any immediate potential in his future service. He desires to get out of the Marine Corps and go to college. He currently has no money for college and is not sure how he will obtain it.”

0312XX*:         Applicant’s Statement to Commanding General. Applicant’s comments: “ I feel that I am no longer a benefit to the United States Marine Corps. My instability has affected my efficiency with the individual tasks I am assigned, my teamwork with TOW Platoon, and will affect my performance in combat. I have decided that before I become uncontrollably desperate to find an irrational escape from my problems (i.e. illegal drug use, UA, insubordinate, etc...), I should be separated from the Marine Corps. I believe that I will be a problem to the Corps for as long as I am part of it. I do not wish to cause more problems here. Thus, saving my command numerous amounts of headaches they will incur while I stay in. This is why I feel the need to be separated. I am no longer a benefit to the Marine Corps or what it stands for.” [* Partial date in service record.]



040113:  Commander, 1 st Marine Division (Rein) forwards Request For Bar Order In Case of Pvt N_ (Applicant) to Commanding General, Marine Corps Air Ground Task Force Training Center (MAGTFTC), Twentynine Palms, CA. The request is that a permanent bar order be issued for Private N_ .

040113:  Commander, 1 st Marine Division (Rein), advised the Commandant of the Marine Corps (MMSB), Headquarters, U. S. Maine Corps that the Applicant will be discharged under other than honorable conditions by reason of misconduct due to drug abuse.


 Service Record Book contains a partial Administrative Discharge package.
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 20040121 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). The Board presumed regularity in the conduct of governmental affairs (D).

 The Applicant states his discharge was based on one isolated incident in 18 months of service. 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. The Applicant’s service record is marred by a summary court-martial for violation of UCMJ Article 112a (2 specifications), thus substantiating the misconduct for which he was separated. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. Separation under these conditions generally results in characterization of service under other than honorable conditions. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. 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. 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 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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