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USMC | DRB | 2005_Marine | MD0501315
Original file (MD0501315.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. MD05-01315

Applicant’s Request
The application for discharge review was received on 20050728. 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 personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060413. After a thorough review of the available 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/or from an attached document/letter to the Board:

“I excelled in job. Fought proudly in the war. My record was perfect except for the incident on 9-11-03. I had a breakdown. I am not looking for benefits - I’m looking to have my discharge changed.”

 “Dear Sir,

I am writing this letter requesting your help.

I joined the Marine Corps on January 22, 2002. I was deeply moved by September 11 th and enlisted. I excelled in boot camp, losing sixty pounds; I took great pride in my achievements.

In February of 2003 I was deployed with the 11 th Marines Artillery Battalion to Iraq. On my way there in Germany my glasses fell off my face and broke in half so I went through the war not being able to see. My job was driving a LVS with artillery so straining to see took its toll on me along with driving 56 hours straight and being fired on. But with pride I can say we were the first into Baghdad. While in Iraq on March 3 rd , I was made Lance Corporal.

In Iraq I would have nightmares but I figured it was “normal” considering the situation.

In June I left Iraq on the USS Pearl Harbor for a fifty-six day trip home. During my time on the ship I would see and hear things out of the norm, but I figured it was the “ship”.

Upon my arrival home in August, I couldn’t sleep. I “saw” Marines on our garage roof, people down on the shoreline of Lake Onalaska at 5:00 am wearing Iraqi type clothing, people in trees and heard voices. My parents would walk around with me showing me that there was no one there. My parents wanted me to go to the Tomah VA I didn’t want to because I didn’t want the Marine Corps to think I was crazy. I said I would deal with it on my own and “shake it off’. When I returned to Camp Pendleton on September 1, 2003 I couldn’t sleep again. I heard knocking on my barracks window and someone calling my name. The problem was my room was on the third floor.

My roommate would open the shade and showed me no one was here. I was beside myself.

This went on for about ten days. When my new CO made the statement that anyone caught using drugs would be immediately “kicked out”. A fellow Marine said I should try it, and maybe I could get home and get some help, so I did. I just couldn’t take it any more.

To avoid being repetitive, I have attached all documents pertinent to the situation.

While at Balboa Dr Z_ and Dr. O_ told my father initially that I had PTSD. This changed after the review board looked over my case and I am sure that the drug episode swayed their opinion. When I was discharged from Balboa Mental Hospital on October 8 th , 2003 I was under restrictions in my barracks, without any counseling. It was very difficult, I was still taking Zyprexa and Zoloft and the only doctor’s appointment was one month later to get refills. At that time I was still seeing things and hearing voices. So they increased the Zoloft from 25 to 100mg per day. This, without any counseling was hard to take, I felt like I wanted to die. There was no counseling, the Navy Doctor, Lt. O_, warned my mother that “the Marine Corps is not going to do anything for you once they get you to Pendleton”. When I got back to Pendleton I signed any paper they put under my nose, I didn’t care what it said all I wanted to do is go home and get help. My parents took turns living in a motel in Oceanside from October 8 th until December 24 th . 2003. They were my support system daily stopping by and checking on me. I don’t think I could have done it if they weren’t there. December 11 th was the date of my separation that came and went. My parents were extremely upset that I was not receiving any professional help since October 8 th and when December 11 th came my paperwork kept getting “rerouted”. Finally the week of December 15 th my mother daily checked with Master Sergeants, Lieutenants, Captains and finally the Colonel and was let out on December 24 th .

Sir, I am a good Marine, my scores with 5.0 being the highest, were all 4.8 and 4.9. I have a Meritorious Mast, Combat Action Ribbon as well as National Defense Service Medal. I am extremely proud of these. I never had any problems until I got back from Iraq. Now with the “Other Than Honorable” Discharge I am scared to death that these nightmares, hallucinations and voices may never go away, I would like to get on with my life. I am seeing a clinical therapist, R_ S_, LCSW as well as a psychiatrist, Dr. M_ both of Franciscan Skemp. Dr. M_ will be supplying you with a letter stating that my case is a textbook example of PTSD. He is aware of the drugs and believes that I self medicated to get out. I understand that since the drug was involved, it was the review boards way of negating the PTSD. They actually said that in the meeting with my mother and myself.

Sir, I have never used any type of drug in my life until this episode. I have always shown distain for those who do but these episodes were beyond my control. I know it was the wrong way to go but I was desperate.

If there is anything you could do for me I would appreciate it. Like I said before, I am a good Marine, I have received the Combat Action Ribbon, National Defense Service Medal, Meritorious Mast, Presidential Unit Citation and Expert Rifle Badge. I did a very stupid thing brought on by my mental health condition and I am very sorry but I would like to be considered for Honorable Discharge.

Thank you for your time.

Sincerely,
M_ R. O_(Applicant)”
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter to Applicant from Board for Correction of Naval Records, dtd October 26, 2004
DD Form 149, dtd July 21, 2004
Letter from Member of Congress of the United States to Applicant, dtd July 6, 2004
Letter from United States Senator to Applicant, dtd June 18, 2004
Letter from United States Senator to Applicant, dtd May 21, 2004
U.S. Naval Criminal Investigative Service report, dtd September 25, 2003 (5 pages)
Narrative summary from Naval Medical Center, San Diego, California, dtd October 8, 2003 (2 pages)
Narrative summary from Naval Medical Center, San Diego, California, dtd October 8, 2003 (7 pages)
Medication usage information (3 pages)
Letter from R_ G. S_, LCSW, MSSW, Clinical Therapist at Franciscan Skemp, Mayo Health System, dtd February 23, 2004
Letter from G_ M_, MD at Franciscan Skemp Medical Center, Outpatient Behavioral Health, dtd June 23, 2004 (unsigned)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20011023 - 20020122      COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20020123             Date of Discharge: 20031224

 Length of Service (years, months, days):

 Active: 01 11 02
          Inactive: None

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

 Age at Entry: 20

 Years Contracted: 4

 Education Level: 12                                 AFQT: 51

 Highest Rank: LCpl                                  MOS: 3533

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (6)                                Conduct: 4.1 (6)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Combat Action Ribbon, National Defense Service Medal, Meritorious Mast, Presidential Unit Citation, Expert Rifle 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 :

011010:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
030910:  Medical Record Entry: Applicant presents to clinic upon admitting to snorting cocaine last night. He also notes doing it 2 nights ago.
         Assessment: Secondary gain vs. psychotic break vs. adjustment disorder. Unlikely to be true psychotic break given nature of hallucinations. Despite recent deployment. No evidence of PTSD.
         Plan: Pt to be taken to SACO and Chaplain.
         Appt with Div Psych Mon 15 th at 0800.

030910:  Excerpt from U.S. Naval Criminal Investigative Service indicates: “On 10Sep03... [Applicant] stated the reason he used drugs was to speed up getting out of the Marine Corps.” [Extracted from supporting document provided by Applicant, U.S. Naval Criminal Investigative Service dated 030925.]
030911:  Mental Health Department, Naval Hospital, Camp Pendleton, CA: Impression: I: 1. Substance - induced hallucinations. 2. Polysubstance abuse. II: Deferred. III: None.

030912:  Applicant admitted to psychiatry Naval Medical Center, San Diego, CA. Chief complaint: “I’m going to hang myself.”
030919:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, tested positive for methamphetamine and amphetamine. [Extracted from counseling entry dated 030919.]

030919:  Counseling: Advised of deficiencies in performance and conduct (Illegal drug use, specifically, methamphetamine, and amphetamine as indicated in NAVDRUGLAB San Diego, CA MSG 192004Z Sep 03.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.
031008:  Applicant discharged from Naval Medical Center, San Diego.
Medical evaluation by C_ L_, LCRD, MC USNR, Staff Psychiatrist, Naval Medical Center, San Diego, CA.
          Discharge Diagnostic Assessment:
         AXIS I: 1. Brief psychotic disorder, resolved.
         2. Status post methamphetamine induced psychosis with hallucinations
         3. Anxiety disorder NOS Rule out posttraumatic stress disorder.
         4. Rule out malingering.
         AXIS II: Deferred.
         AXIS III: None
         AXIS IV: Occupational problem.
         AXIS V: 1. On admission 11 to 20, some danger of hurting self or others.
         2. Current 61 to 70, some mild symptoms.
         3. Highest last 12 months 71 to 80.
         Recommendation and Plan:
         1. Discharged to command.
 2. Patient in need of psychiatric medication at this time. He is given 30 day supply of Zyprexa 10 mg q. h.s. and Zoloft 50 mg q.d.
3. Patient in need of further psychiatric treatment. Scheduled for a follow-up appointment with Naval Hospital Camp Pendleton Mental Health on 13Nov03 at 0930 with Capt N_.
4. Patient currently pending legal action for drug abuse. Patient is responsible for actions and should be held accountable.
5. Crisis plan: Should patient become suicidal or homicidal or experience worsening symptoms, patient needs to report directly to the nearest Mental Health facility or emergency room or contact the command and/or use coping skills.
6. Instructions to patient: abstain from drug/alcohol use, use crisis skills.

031021:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of use of illegal drugs. The factual basis for this recommendation was testing positive for the use of methamphetamine. Applicant informed the least favorable characterization of service possible is under other than honorable conditions.
031022:  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.

031026:  Applicant’s statement.

031028:  NJP for violation of UCMJ, Article 112a (2 specs):
         Specification 1: Did on or about 23 October 2003 at an unknown location, wrongfully use Methamphetamine.
         Specification 2: Did on or about 23 October 2003 at an unknown location, wrongfully use Amphetamine.
         Award: Forfeiture of $645 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Not appealed.

031028:  Counseling: Advised of deficiencies in performance and conduct (Recent NJP held on 031028 for article 112a of the UCMJ. I also understand I am eligible, but not recommended for promotion to the next higher grade for a period of six months.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

031119:  Commanding Officer, Headquarters Battery, 11 th Marines, recommended Applicant’s discharge under other than honorable conditions by reason of illegal drug use, specifically amphetamine and methamphetamine. Commanding Officer’s comments: “On 21 October 2003, PFC O_(Applicant) was notified of my intent to recommend his administrative separation, as indicated by enclosure (1).
 By his own statement, PFC O_(Applicant) deliberately used illegal narcotics in an effort to separate from the Marine Corps. Statements from his OIC and SNCOIC consistently reflect that PFC O_(Applicant) is unfit for further service and should be separated.
Since he first admitted to using illegal narcotics, PFC O_(Applicant) has been provided extensive medical and psychiatric care. He has been under regular psychiatric care for depression, suicidal ideations and hallucinations. He has been treated at the Naval Hospital in Camp Pendleton, and been under supervision and diagnosis at Balboa Hospital for nearly three weeks. Upon the completion of his in-patient care, he was provided a prescription regimen and released back to the command. The resulting psychiatric diagnosis was “a brief psychotic disorder coupled with methamphetamine induced psychosis which is now resolved.” The diagnosis also states:
“Prior to admission, the patient was aware of his action and willfully took measures to go out, acquire methamphetamines and use them. This level of organization is not typical of psychotic patients.”
I personally interviewed PFC O_(Applicant) on 17 November 2003. PFC O_(Applicant) expressed an unwavering desire to get out of the Marine Corps. His use of illegal narcotics demonstrates his willingness to do whatever is necessary to separate from the Marine Corps. During our interview, PFC O_(Applicant) denied any suicidal ideations. He also stated that he was feeling “normal” while on the current prescription regimen assigned by his psychiatrist. PFC O_(Applicant)’s sincere desire to get out of the Marine Corps is telling and I am confident that if he is retained, he will again use illegal drugs or take other actions to impel his early separation.
I strongly recommend that PFC O_(Applicant) be administratively discharged from the Marine Corps with an Other Than Honorable characterization of service. Furthermore, I recommend separation proficiency and conduct marks of 2.9 and 2.0, respectively.”
031205:  Applicant refused medical officer evaluation. Applicant informed of availability of VA treatment.

031208:  Commanding Officer, 11 th Marines, forwarded the recommendation for the Applicant’s discharge, recommending approval.

031211:  SJA review determined the case sufficient in law and fact.

031222:  GCMCA, Commanding General, 1 st Marine Division (Rein), 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 20031224 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).

 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 two specifications of a violation of Article 112a of the UCMJ for use of amphetamine/methamphetamine. The record also shows the Applicant used cocaine on multiple occasions, to include on 20030909. The Applicant’s use of cocaine was not adjudicated. 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 a breakdown.” The Applicant further implies that his discharge was inequitable because he was suffering from hallucinations and used illegal drugs to expedite his discharge for his own well-being. The record clearly reflects the Applicant’s willful misconduct and demonstrates 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.

The Applicant implies that his discharge was inequitable because he should have received a discharge for post traumatic stress disorder. To support his claim, the Applicant states, “the review board looked over my case and I am sure that the drug episode swayed their opinion.” The Applicant further states, “I understand that since the drug was involved, it was the review boards way of negating PTSD.” For the edification of the Applicant, appropriate regulations stipulate that discharges by reason of misconduct take precedence over discharges for other reasons, to include discharges for medical reasons. The Applicant admitted to and was awarded punishment for violating Article 112a of the UCMJ. While serving his enlistment, the Applicant indicated he used illegal substances to be separated from the Marine Corps. Neither the evidence of record nor the documents provided by the Applicant demonstrate that the Applicant should not be held responsible for his conduct. Therefore, the Board found the Applicant’s issue without merit. Relief denied.

 The following is provided for the edification of the Applicant. 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 sufficient post-service documentation for the Board to consider. 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. 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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