DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW
DECISIONAL DOCUMENT


FOR OFFICIAL USE ONLY


ex-Pvt, USMC
Docket No. MD05-01269

Applicant’s Request

The application for discharge review was received on 20050714. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or 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 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.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and from an attached document/letter to the Board:

“I am interested in applying for a government or possibly a federal position. The only justification I have is that I am trying to make my life better and more successful for my family.”

“Dear Sir or Madame,

My intent in writing this letter is to state my concern for my other-than-honorable discharge from the United States Marine Corps. I understand my actions were immature and irresponsible and I do not deny my wrongdoings as a member of our nations military. I truly believe my intentions in enlisting were good, but my timing was bad. I was seventeen and not even out of high school when I signed and my household was in turmoil. In fact, I moved my mother out of our home on leave from boot camp. I guess that is when it all went downhill. Rather than trying to use the resources given to me through the military I held in my emotions and tried to be a strong adult when in fact I was still emotionaly a child. I never admitted that my family problems had an effect on me. Now that time has gone buy I can see that my coping techniques were both immature and unjustifiable. However, since my discharge I have progressed and am now an upstanding citizen. I am respectfully requesting that my discharge be looked into and possibly changed. My reasons are simple. I have a wonderful family to support now and I would like to apply for a government, federal, or local law enforcement job. I have been successful in the hospitality industry and am currently a manager in the CiCi’s Pizza Corporation. Although I am doing well I am not very fulfilled in this line of work and given the chance would like to change careers. I fully understand that some things can not be changed and I may have to live with the consequences of my actions.
I am asking for a second chance to better myself, the needs of my family, and to clear my conscience. Thank you for your time in reviewing my case.

Sincerely,

S_ K_(Applicant)”

Documentation

Only the service record book was reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

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PART II - SUMMARY OF SERVICE

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

         Inactive: USMCR (DEP)    19970322 - 19970721      COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 19970722             Date of Discharge: 20000922

Length of Service (years, months, days):

Active: 03 02 01 (Does not exclude lost time)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              Unknown

Age at Entry: 17 (Parental Consent)

Years Contracted: 5

Education Level: 12                                 AFQT: 67

Highest Rank: LCpl                                  MOS: 2631

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: 4.2 (7)                                Conduct: 3.9 (7)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Letter of Appreciation, M16 Rifle Expert (2d Awd), MM Pistol Sharpshooter

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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 :

970321:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

970322:  Pre-service waiver for drugs granted. [Extracted from enlistment documents and Commanding Officer’s letter of 2000829.]

980317:  Counseling: Advised of deficiencies in performance and conduct (Violation of Article. 92, UCMJ. Specifically, was knowingly in violation of the Company Liberty Card Policy leaving Corry Station in civilian attire on 980314. Off base liberty privileges were suspended at the time of the incident.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980317:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of April 1998 promotion period because of a pattern of immature behavior. Applicant chose not to make a statement. [Extracted from NAVMC 118 (counseling) dated 980317.]

980326:  NJP for violation of UCMJ, Article 92: Disobeying a lawful order (knowingly violate a direct order from the company SNCOIC by departing base while off-base liberty privileges were suspended).
.        Award: Restriction for 7 days, reduction to E-1. Reduction suspended for 6 months.

980326:  Counseling: Advised of deficiencies in performance and conduct (Violation of Article 92. Specifically, on 22 Mar 98, violated the Company SNCOIC’s verbal order to remain on base and in the uniform of the day.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990202:  NJP for violation of UCMJ, Articles 111, 92. Drunken operation of a vehicle, failure to obey a lawful order on or about 0203, 22 Dec 99.
         Award: Forfeiture of $537 per month for 2 months, correctional custody for 30 days, reduction to E-2. Not appealed.

000308:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 000302, tested positive for cocaine.

000404:  Consultation Sheet ATF Camp Lejeune, NC: Evaluation for substance abuse/dependence. Assessment: Drug abuse. Isolated incident. No treatment indicated at this time. Recommend process for administrative separation.

000509:  Applicant’s pretrial agreement (agreed to enter a voluntary plea of guilty at summary court-martial provided the Government withdraw the charge and sole specification at pending special court-martial).

000519:  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 112a:
         Specification: Between on or about 20 Feb 00 and 29 Feb 00, SNM wrongfully used, a controlled substance (cocaine).
         Finding: to Charge and the specification thereunder, guilty.
         Sentence: Forfeiture of $670.00, restriction and extra duty for 45 days, reduced to E-1.
         CA action 000522: Sentence approved and ordered executed.

000601:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was illegal drug use as evidenced by Navy Drug Lab Msg R 081838Z Mar 00 and Summary Court-Martial of 19 May 2000. The least favorable characterization of service possible is under other than honorable conditions.

000605:  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.

000606:  Counseling: Advised of deficiencies in performance and conduct (Illegal drug involvement, specifically usage identified through urinalysis testing, DOD Drug Testing Laboratory number J0003176041 and the type of drug identified was cocaine), and advised being processed for administrative separation.

000620:  Consultation Sheet ATF Camp Lejeune, NC: Evaluation for substance abuse/dependence. Assessment: Drug abuse. Isolated incident. Alcohol Dependence. Recommend processed for administrative separation. Recommend treatment at ATF, CLNC.

000714:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 000710, tested positive for cocaine.

000725:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification 1: On or about 1300 13 June 2000 without authority absent himself from BCo and remain absent until on or about 1430 13 June 2000.
         Specification 2: On or about 0800 16 June 2000 without authority absent himself from BCo and remain absent until on or about 1535 16 June 2000.
         Specification 3: On or about 0600 6 July 2000 without authority fail to go at the time prescribed to his appointed place of duty, Weigh-in and PFT and remain absent until on or about 2250 6 July 2000.
         Specification 4: On or about 0600 7 July 2000 without authority fail to go at the time prescribed to his appointed place of duty, Company PT and remain absent until on or about 0700 7 July 2000.
         Charge II: Violation of the UCMJ, Article 90:
         Specification: Received a lawful command from First Lieutenant R_ C. F_ USMC, not to go on leave or words to that effect did go on leave on or about 2145 5 July willfully disobey an order.
         Charge III: Violation of the UCMJ, Article 134:
         Specification: On or about 25 June 2000 broke restriction.
         Findings: to Charge I, specifications 1 and 3, Charge II and all specifications thereunder and Charge III and all specifications thereunder, guilty. To Charge I, specifications 2 and 4 thereunder, not guilty.
         Sentence: Confined for 30 days.
         CA action 000725: Sentence approved and ordered executed.

000726:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 000712, tested positive for cocaine.

000810:  Applicant commenced Level III drug treatment at Portsmouth Naval Hospital. [Extracted from Commanding Officer’s recommendation dated 000829.]

000829:  Applicant dropped from Level III treatment due to lack of cooperation. [Extracted from Commanding Officer’s recommendation dated 000829.]

000829:  Commanding Officer, 2d Radio Battalion, recommended Applicant’s discharge under other than honorable conditions. Commanding Officer’s comments: “Private K_(Applicant) entered boot camp on 22 July 1997 and graduated as the honor graduate in October 1997. Within the first five months after graduation he received two page 11 entries dated 17 March and 26 March 1998 and one non-judicial punishment dated 26 March 1998. All three were for failure to obey orders or regulations. Private K_(Applicant) received his second non-judicial punishment on 1 February 1999. Again, failure to obey orders or regulations by driving while under the influence of alcohol.
A company wide urinalysis was conducted on 1 March 2000. On 8 March 2000, 2d Radio Battalion received the results, by message traffic (DTG 081838Z Mar 00), identifying Private K_(Applicant)’s as testing positive for cocaine. As a result of his illegal use of a controlled substance, he was the subject to a summary court-martial on 19 May 2000.
Private K_(Applicant) signed a pre-trial agreement on 9 May 2000. He agreed to plead guilty to the wrongful use of cocaine at a summary court-martial and to waive his right to an administrative discharge board if the convening authority agreed to withdraw the charge and its sole specification from the pending special court-martial.
Private K_(Applicant) received his second summary court-martial on 25 July 2000 for breaking restriction, disobeying a lawful order from a commissioned officer, and four specifications of unauthorized absence. At the time of this summary court-martial he was not charged with an additional count for the wrongful use of cocaine in order to expedite his legal procedures and to get him into a level III drug rehabilitation program. Private K_(Applicant)’s original administrative separation package dated 19 June 2000 was retrieved from the II MEF Staff Judge Advocate at that time to allow for completion of rehabilitation prior to processing.
As evidenced, by reports from the Navy Drug Lab received on 14 July and 26 July, Private K_(Applicant) continued to use cocaine following his original 19 May 2000 summary court-martial. Private K_(Applicant) also admitted to using LSD, Ecstasy, and marijuana. Based on his self-confessed problem and request for help, the command took the primary approach to trying to assist the Marine vice sending him to special court-martial. Private K_(Applicant) was sent to a level III drug rehabilitation program at Portsmouth Naval Hospital on 10 August 2000, but he was dropped from the program on 29 August due to lack of cooperation.
Private K_(Applicant) joined the Marine Corps on a MGD drug waiver. He further acknowledged the Marine Corps’ policy on drugs by signing a statement of understanding in enclosure (4). Yet he willingly used cocaine on more than one occasion knowing it to be wrong and illegal. Additionally his drug involvement has resulted in the loss of his access to Sensitive Compartmented Information, which is a requirement for his MOS. This Marine has been given numerous breaks and attempts have been made to assist him with his rehabilitation. These action have been to no avail. I recommend that Private K_(Applicant) be separated from active service with an Other Than Honorable characterization of service. ”

000912:  SJA review determined the case sufficient in law and fact.

000914:  GCMCA, Commanding General, II Marine Expeditionary Force, directed the Applicant's discharge under other than honorable conditions by reason of misconduct based on drug abuse.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000922 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).

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 two nonjudicial punishment proceedings for violations of Articles 92 and 111 of the UCMJ. The Applicant was also convicted at summary court-martial of violations of Articles 86, 90, 112a and 134 of the UCMJ. The Applicant tested positive for illegal drug use on three occasions. The Applicant’s violations of Articles 90, 92, 111 and 112a are serious offenses. The Applicant was discharged from Level III drug treatment due to a lack of cooperation. 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 implies that his misconduct in the Marine Corps can be attributed to his youth and family turmoil. While he may feel that his immaturity and personal problems were 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 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 is trying to make his life better for himself and his family, is interested in changing careers and that he has been successfully employed. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. 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. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 31 August 2001.

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 90, willfully disobeying a superior commissioned officer, Article 92, failure to obey and order/regulation, Article 111, drunken driving and Article 112a, wrongfully use 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 .

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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