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


FOR OFFICIAL USE ONLY


ex-LCpl, USMC
Docket No. MD05-01379

Applicant’s Request

The application for discharge review was received on 20050815. 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 20060427. 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 an attached document/letter to the Board:

“I, B_ W_ B_(Applicant), am respectfully requesting a consideration to re-evaluate my “Other Than Honorable” discharge from the United States Marine Corps. This letter and the enclosures are to serve as an exemplification of my moral stature and responsibility to duty. I dedicated, without question, my life and loyalty for seven and a half years of service in the United States Marine Corps. My goal and constant driving force was to always do my best and strive for excellence regardless of any emotional duress. I undoubtedly excelled at all tasks and all responsibilities which have been demonstrated by my record. My hope is that you, the Discharge Review Board, will consider a re-evaluation of the discharge I was given at the time of my administrative separation from the United States Marine Corps. I truly believe my discharge was unmerited and that of haste.

I have at this time, enclosed copies of documents pertaining to my character with this request. As you read on and continue with my re-evaluation, you will see that I am of morale character, a good leader, and was a first-rate Marine. I successfully completed two seven month deployments overseas, multiple deployments throughout the world and domestic dets. I have zero international incidents and zero altercations with police. My record speaks for itself I was a model Marine at every port call and at no time did I ever risk embarrassing the United States nor the Marine Corps.

My service record book was immaculate. I received on average at least 4.5/4.5 on my Pros and Cons sheets as an E-1 to E-4. My Fitreps as an E-5 to E-6 (select) grading indicated that I was always ‘above average’ and recommended for promotion to the next grade. Part of the requirements for promotion to NCO and SNCO is PMI; primary military instruction. PMI is considered to be a very challenging and tedious process. I successfully completed the Non-Resident Non-Commissioned Officer’s Course (8000 Series) and graduated from the Resident Corporals’ Course in Okinawa, Japan in 1997. I then went on to successfully complete the rigorous Sergeant’s Resident Course in Quantico, VA in 2001, which is considered to be the most difficult of the four locations for the course; Camp Lejune, NC, Camp Pendleton, CA, Camp Hanson, Okinawa, MCB Quantico, VA.

I was awarded the honor of selection to Staff Sergeant (E-6) which is not an easy feat. There are thousands of Marines competing for selection. I had attained selection to Staff Sergeant in under seven years whereas the average marine can take up to twelve. This was a goal I set out to accomplish and achieve prior to completion of my second term.

During my time as a marine, I was an aircraft mechanic. I personally maintained gear and hardware for the pilots and aircrew that was required for their survival. Due to my proficiency and diligence, I was promoted from a basic technician to Collateral Duty Inspector to Quality Assurance Collateral Duty Inspector and then finally to Department Supervisor. After proving my success as a Department Supervisor, I was sent to Maintenance Control. I was in Maintenance Control for almost a year. While there, I was in charge of assigning and coordinating all the maintenance tasks to each shop. This included but not limited to, all calendar inspections, preventative maintenance, corrosion control, emergency maintenance, pilot/aircrew maintenance, and individual shop maintenance. I had to expeditiously familiarize myself with the entire workings of the CH-53E Super Stallion. The confidence that was entrusted to me was the ability to certify aircrafts worth millions of dollars, “Safe for Flight.” That same confidence allowed me authority which superseded the Commanding Officer’s on that matter. Deeming an aircraft “Safe for Flight” carried with it great responsibility to the livelihood of my fellow marine. They depended on me and trusted me with their lives for years, and I never let them down.

The United States Marine Corps has the respect of the world because they are a force to be reckoned with. Their reputation is golden and they pride themselves on being the best of the best. Living up to this responsibility is a tough challenge and one that I faced with courage and honor. My one consistent goal was to never let my country down. My mind was set on being the best I could be and to do whatever it takes to never let my fellow marines down. I felt the pressures and emotional strain of events I had encountered during my time in the Corps. I could not show a sign of weakness. Emotion is weakness and I had to prevent it. I was dead set on living up to the Marine reputation of physical strength and the strength of character. For seven and a half years I never showed a sign of weakness, I prevailed at all I attempted and I achieved. Not now, at close to the end of my term was I going to allow stress or emotion get the better of me; weaken me. I chose strength. But I chose poorly.

At no time did I ever partake in the use nor distribution of any narcotic substance. I was randomly tested for narcotic use numerous times and showed negative results each and every time. In my seven and a half year, I was given a urine test for anabolic steroids and I tested positive. The positive test result was an isolated incident; an incident that changed my life for the worse. I never used an anabolic steroid prior to this stressful and trying time and in no way did I distribute nor conspire to distribute a controlled substance. Sometimes the best intentions can have the worst effects. I made a poor choice to aid my strength by the use of an anabolic steroid and I was prepared to be reprimanded for my mistake. I did not however ever expect the unlikely turn of events nor the investigation I was about to get caught up in that would lead to my demise. With a simple drop of my name, I was associated and charged with crimes I did not commit nor was aware they were being committed.

I was told I was being called in for a Non-Judicial Punishment for a positive result on my urine analysis. Upon agreeing to the NJP, more charges surfaced that I had nothing to do with. I was overwhelmed and my emotional stress intensified. Upon receiving the NJP, I was reduced to Corporal, had forfeiture of ½ a months pay for two months, 60 days restriction, and recommended for administrative separation from the USMC. Seven and a half years of perfect service for it to crumble before my eyes without me having any control of the situation nor the ability to fight it. In my attempt to live up to the reputation of the United States Marine Corps and to NOT let my nation down, I made the mistake of my life by purchasing and using an anabolic steroid obtained from S_ H_. S_ was being investigated for quite some time and in his attempt to secure his innocence turned the tables and pointed the finger at me for his scapegoat. The “evidence” being stacked against me was based on the lies and manipulations of S_ H_. At this point there was no fight left in me. I was physically and emotionally crushed and unable to fight the charges. I had no desire to proceed in a trial. Trying to prove my innocence was so overwhelming that I truly had lost all hope. Had there been a pretrial, I would have had the chance to plead “No Contest” and my charges may have lessened. I did not appeal the Non-Judicial Punishment decision given by Commanding Officer Lieutenant Colonel J.C. G_. I was so humiliated and denigrated that I decided it would be easier to comply and take what they were giving me. I am listing the following articles of which I was initially charged with my explanation of them.

1) Article 112a: Wrongful use of a controlled substance. This is the mistake I willing admit.
2) Article 1l2a: Wrongful possession of a controlled substance. The items found upon search were strictly for personal use only and in no way intended for distribution.
3) Article 81: Conspiracy to commit Article 134 paragraph 96, obstructing justice. At no time did the record show I obstructed any investigations dealing with S_ H_. I did not give them the information they wanted on S_ as I was not privy to any. It was written down that I was holding onto the substances for S_ H_, thus conspiring to commit a crime. The truth of the matter is that I bought the substances from S_ H_ for personal use only.
4) Article 134 Par 79: False swearing. The record will stipulate that I was in full cooperation and at no time did I commit perjury. It was noted in the investigation reports to the commanding officer that all events did transpire as I described on the statements. Any information I did have I made readily available. I did not conceal nor lie facts.
5) Article 134 Par 103: Seizure: destruction, removal or disposal of property to prevent. As previously stated, at no time did I conceal my use nor possession of an anabolic steroid from the authorities. In fact, I told Agent M_ D_ where the items were located without hesitation and they were immediately recovered without any searching. There was no destruction to any substance on my part.

The charges I faced and were convicted of did not fit the crime. My discharge was unfair and inappropriate. I had been a model marine for seven and a half years. Yes, I did use an anabolic steroid. I did so with the best intentions. I was, however, naive in thinking it would make me a more proficient and physically reliable Marine. I made the mistake of using a controlled substance; an anabolic steroid to enhance my abilities. I was in possession of this anabolic steroid. That is the only crime I committed and the only mistake I made the entire time in the Corps. Not one mistake prior to this isolated incident.

I know I failed as a leader of the Marines in not reporting S_ H_ to the authorities once I became suspicious of his illegal activities. I know I failed myself in choosing to use an anabolic steroid. I know I was under severe emotional duress and was not thinking with a clear head. I also know that given a second chance I would have never made this mistake. My life was and still is about the United States Marine Corps. It was my call to duty. The Marine Corps was my opportunity to give back to my country; to fight for our continued freedom. Not a day goes by that I wish I could take back my mistake. I want to walk with the pride of the United States Marine Corp. I no longer wish to bare this negative symbol of an “Other than Honorable” discharge.

I ask that you carefully consider the facts from my service record book, training jacket, enclosed documents, and my most sincere request for re-evaluation. I implore you to change my discharge from “Other Than Honorable” to “Honorable” so that I may once again walk with the pride of reputation and strength of character of the United States Marine Corps. The very core of our country and the Corps I fought for that I knew was worth dying for.
Thank you,
[signed]
B_ B_(Applicant) ”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter of Recommendation from Lieutenant Colonel M. W. Q_, USMC, dtd March 1, 1999
Letter of Recommendation from Captain T. E. R_, USMC, dtd February 23, 1999
Character Reference ltr from B_ P. R_, Captain, USMC, dtd February 19, 1999
Certificate of Good Conduct, dtd November 28, 1998
Certificate of Good Conduct, dtd December 1, 2001
Promotion warrant, dtd December 1, 1999
Noncommissioned officer certificate, undtd
Honorable discharge certificate, dtd March 7, 2000
Certificate of Commendation cover letter, dtd November 17, 1998
Certificate of Commendation, dtd November 10, 1998
Certificate of Appreciation for conduct from 6-26 October 1999
Certificate of Completion of Sergeants Nonresident Program, dtd July 24, 1998
Certificate of Completion of Sergeants Course Class 1-02, dtd December 7, 2001 (2 pages)
Certificate of Reenlistment, dtd March 8, 2000
Counselor assessment and recommendation form, dtd February 20, 2003 (2 pages)

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PART II - SUMMARY OF SERVICE

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

         Inactive: USMCR (DEP)    19950830 - 19951127      COG
         Active: USMC     19951128 - 20000302      HON

Period of Service Under Review :

Date of Enlistment: 20000303             Date of Discharge: 20030404

Length of Service (years, months, days):

Active: 03 01 02
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 23

Years Contracted: 4

Education Level: 12                                 AFQT: 53

Highest Rank: Sgt                                   MOS: 6048

Final Enlisted Performance Evaluation Averages (number of marks): Enlisted performance reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Marine Corps Good Conduct Medal (w/1*), National Defense Service Medal (w/1*), Sea Service Deployment Ribbon (w/1*), Humanitarian Service Medal, Meritorious Unit Commendation (w/1*), Letter of Appreciation (x2), Certificate of Commendation

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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 :

000303:  Reenlisted this date for a term of 4 years.

021216:  Counseling: Advised of deficiencies in performance and conduct (Sending a threatening email to another Marine.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021226:  UCLA Olympic Analytical Laboratory reported Applicant’s urine sample, received 021216, tested positive for Epimethendiol and 17-Epimethandienone, metabolites of anabolic steroid methandienone.

030212:  NJP for violation of UCMJ, Article 81: Conspiracy to commit Art 134 par 96 obstructing justice.
Violation of UCMJ, Article 112a: Wrongful use of a controlled substance, Epimethendiol and 17-Epimethandienone, metaolites of anabolic androgenic steroid methandienone, a Schedule III controlled substance Usage identified through urinalysis and confirmed by UCLA Olympic Analytical Lab Code dod1127 YGR03 ltr dtd 26 Dec 02.
Violation of UCMJ, Article 112a: Wrongful possession of controlled substance, Anabolic Esteroide, two vials of “TEST 400”, one vial of “Testostrone 200” and approx 150 pills of Dinobol.
Violation of UCMJ, Article 134 par 79: False swearing Art 134 par 103: Seizure: destruction, removal of disposal of property to prevent.
         Award: Forfeiture of $912 per month for 2 months, restriction for 60 days, reduction to E-4. Not appealed.

030212:  Counseling: Advised of deficiencies in performance and conduct (Violation of Article 81 UCMJ: Conspiracy to commit Article 134 par 96 obstructing justice, Article 112a UCMJ: Wrongful use of a controlled substance, Epimethediol and 17-Epimethandienone, metaolites of anabolic androgenic steroid methandienone, a Schedule III controlled substance. Usage identified through urinalysis and confirmed by UCLA Olympic Analytical Laboratory Code dod1127 YGF03 ltr dtd 26 Dec 02: Article 112a UCMJ: Wrongful possession of controlled substance, Anabolic Esteroid, two vials of “TEST 400”, one vial of “Testostrone 200” and approx 150 pills of Dinobol; Article 134 par 79 UCMJ: False swearing; Article 134 par 103 UCMJ: Seizure: destruction, removal or disposal of property to prevent.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

030212:  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 use of steroids during this enlistment as evidenced by positive urinalysis as confirmed by the UCLA Olympic Analytical Laboratory, Los Angeles, California. Applicant informed the least favorable character of service possible is under other than honorable conditions.

030212:  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.

030220:  SACC, MCAS New River Counselor Assessment and Recommendation: Applicant did not meet DSM-IV criteria for Alcohol/Drug Abuse/Dependence. Recommend return to duty. No further counseling or assistance indicated at this time.

030220:  Counseling: Advised of deficiencies in performance and conduct (Illegal involvement. (Epimethendiol and 17-Epimethandienone, metabolites of anabolic androgenic steroid methandienone, a Scheduled III controlled substance.) Usage identified through urinalysis and confirmed by UCLA Olympic Analytical Laboratory Code DOD1127 YGF03 ltr dtd 26 Dec 2002.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030221:  Commanding Officer, Marine Heavy Helicopter Squadron 772, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

030228:  Applicant signed statement of understanding of treatment for substance abuse at a Veterans Administration Medical Center.

030324:  SJA review determined the case sufficient in law and fact.

030324:  GCMCA, Commanding General, 2d Marine Aircraft directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030404 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).

When Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. 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 a retention warning for sending a threatening email to another Marine and a counseling for violations of Articles 81, 112a and 134 of the UCMJ. The Applicant’s service is also marred by nonjudicial punishment proceedings for violations of Articles 81, 112a and 134 of the UCMJ. 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 was inequitable because it was “unmerited,” “unfair and inappropriate.” The Applicant also implies that his conduct and achievements prior to his drug use should have mitigated his drug use. Further, the Applicant contends that he did not attempt to distribute illegal substances, attempt to conspire to obstruct justice, false swear or violate Article 134, Paragraph 79 of the UCMJ. 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. There is credible evidence in the record that the Applicant used illegal drugs and the Applicant admits in his letter to the Board that he used an illegal substance. 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. Therefore, the Board found the Applicant’s discharge proper and equitable. Relief denied.

The Applicant contends that he was under “severe emotional duress and was not thinking with a clear head.” While he may feel stress 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.

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 any relevant 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 .

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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