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USMC | DRB | 2005_Marine | MD0501231
Original file (MD0501231.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD05-01231

Applicant’s Request
The application for discharge review was received on 20050712. 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 designated a Veterans Service Officer as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060316. 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 an attached document/letter to the Board:

 “I received an Other Than Honorable Conditions discharge from the USMC because of unauthorized use of anabolic steroids. These are not mind-altering substances and I never abused any illegal drug of any other kind . I had a very good service record and I believe I received the type of discharge I did as an example to the other Marines I was stationed with on Okinawa.

I contend that, given my overall honorable service, that I should have at a minimum been afforded the rights of someone who was abusing illegal mind-altering drugs; I understand that drug rehabilitation failures are routinely given separations under honorable conditions. Given my record of service and the fact that my steroid use never endangered a fellow Marine because the drug I abused was not a mind-altering substance, I am requesting a discharge upgrade to Under Honorable Conditions . It was wrong for me to use the steroids, but they were used to help me bulk up in order to perform my job better. This is not an excuse; I just want you to understand why I used the steroids.

I have no additional evidence to offer. I believe a review of my service records will show that I was a good Marine with that one exception.

Respectfully submitted,

J_ R. S_(Applicant)
(Social Security number deleted)
(Mailing address deleted)
(Telephone number deleted)”

The Applicant’s representative submitted no issues for consideration.
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (State Director of Veterans Affairs copy)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19980611 - 19990523      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19990524             Date of Discharge: 20030121

 Length of Service (years, months, days):

 Active: 03 07 28
          Inactive: None

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

 Age at Entry: 19

 Years Contracted: 4

 Education Level: 12                                 AFQT: 57

 Highest Rank: Cpl                                   MOS: 5811

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 (10)                               Conduct: 4.4 (10)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Good Conduct Medal, Navy Achievement Medal, National Defense Service Medal, Sea Service Deployment Ribbon, Overseas Ribbon, Navy Unit Commendation w/1*, Meritorious Mast, Ltr of Appreciation (6), Cert of Appreciation (2), Certificate of Commendation (2), Rifle Expert Badge, Pistol Sharpshooter Badge.


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 :

980609:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

980611:  Pre-service waiver for minor traffic violations granted.

020620:  Military Police Investigation report. Result of search/seizure: Two syringes and approximately 1cc of anabolic steroids.
020821:  NJP for violation of UCMJ, Article 92: In that Cpl S_(Applicant), B Co, HQSVBN, MCB, did, on board Camp Hansen, at Brks 2495 Room 121, on or about 20 Dec 01 - 14 June 02, violate a lawful general regulation to wit: paragraph 1138 of United States Navy Regulations, dtd 14 Sept 1990, amended 15 Mar 1993, by not preventing and eliminating the unauthorized use of controlled substance within the naval service.
 Violation of UCMJ, Article 112a: In that Cpl S_(Applicant), B Co, HQSVBN, MCB, did, on board Camp Hansen, at Brks 2495 Room 121, on or about 20 Dec 01 - 14 June 02, wrongfully use, possess and import anabolic steroids, a schedule III controlled substance.
          Award: Forfeiture of $734 per month for 2 months, restriction and extra duty for 30 days, reduction to E-3. Forfeiture suspended for 6 months. Not appealed.

020821:  Counseling: Advised of deficiencies in performance and conduct (Illegal drug related involvement on diverse occasions between 21 Dec 01 through 14 Jun 02, specifically, anabolic steroid usage identified through a MPI investigation dtd 12 Aug 02.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.
020917:  Alcohol Rehabilitation Department: Presently eligible for ARD/SACC alcohol treatment.

020925:  Substance Abuse Evaluation: Applicant does not reveal a pattern of drug/alcohol abuse or dependence and does not require treatment at this time.

02XXXX:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense. The least favorable discharge possible is under other than honorable conditions.
021001:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

021007:  Applicant to IMPACT class.

 021011:  Applicant completed 20 hour Alcohol IMPACT class.

 021218:  An Administrative Discharge Board based upon a preponderance of the evidence and by a majority vote, found that the Applicant had committed misconduct due to drug abuse and misconduct due to a commission of a serious offense, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

021223:  Commanding Officer, Headquarters and Service Battalion, Marine Corps Base, Camp Smedley D. Butler recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse and commission of a serious offense. Commanding Officer’s comments: “I concur with the findings and recommendations of the administrative discharge board and recommend that Lance Corporal S_(Applicant) be separated from the U.S. Marine Corps, by reason of misconduct due to drug abuse and a commission of a serious offense per paragraph 6210.5 and 6210.6 of the reference, respectively. The characterization of service should be under other than honorable conditions.”

021227:  GCMCA, Commanding General, Marine Corps Base, Camp Smedley D. Butler, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense. Misconduct due to drug abuse is to be considered the primary narrative reason.

 021228:  SJA review determined the case sufficient in law and fact.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030121 by reason of misconduct due to drug abuse (A and B) 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 (C and D).

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. 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 nonjudicial punishment proceedings for violations of Articles 92 and 112a of the UCMJ. While serving as a Military Policeman, the Applicant, on diverse occasions, failed to prevent unauthorized use of a controlled substance and wrongfully used, possessed and imported illegal drugs. The Applicant’s violations of Articles 92 and 112a of the UCMJ are serious offenses. 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 his discharge should be upgraded because:
•         The illegal drugs he used were not “mind-altering.”
•         He used illegal drugs to “bulk up in order to perform [his] job better.”
•         His illegal drug use “never endangered a fellow Marine. ”
•         He “understand[s] that drug rehabilitation failures are routinely given separations under honorable conditions.”
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. While the Applicant may feel that his possession, use and importation of illegal drugs is mitigated by these contentions, 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. Relief denied.

The Applicant contends that he, “should have at a minimum been afforded the rights of someone who was abusing illegal mind-altering drugs.” There is no indication in the record or in the documentation submitted by the Applicant that he was not afforded the rights to which he was entitled. The Applicant was properly notified of the intention to recommend his separation and stood before an Administrative Discharge Board. The Administrative Discharge Board [ADB] found that the Applicant had committed misconduct due to drug abuse and misconduct due to the commission of a serious offense. The ADB further found that such misconduct warranted separation and recommended the Applicant’s discharge. The Staff Judge Advocate found the Applicant’s case sufficient in law and fact. The Board could find no impropriety or inequity in the Applicant’s administrative discharge processing. 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. 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. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, failure to obey an order/regulation or Article 112a, wrongful use of a controlled substance.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

D. 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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