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USMC | DRB | 2005_Marine | MD0501384
Original file (MD0501384.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. MD05-01384

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 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 20060915 . 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 to the Board:

“Issue 1. Need VA Health care for Gulf War Syndrome
 Issue 2. To Futher education through GI Bill and use VA Benefits Programs
 4) My decorations, medals, badges, citations and campaign medals
 Issue 5) Felt Court Martial was Swift and unjust (PSTM) offered no Help nor counseling for Mental State or Rehab.
 5) Issue Denial of Medical Treatment”

 Applicant’s Remarks: Taken from the DD Form 293 to the Board:

“If the Board would approve my up Grade it would Be of most Importance to my Health & well being for my Service to my Country During Dessert Shield/Storm. Please Feel free to call for more Info. Thank You (Signed) D_ G_ (Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2 )
Ltr from The Department of Veterans Affairs Medical Center, Memphis, TN, dtd August 1, 2005
 Helena Regional Medical Center Discharge S ummary, S_ H_, M.D., dtd July 18, 2005
Helena Regional Medical Center History & Physical, dtd July 18, 2005
 Northwest Mississippi Regional Medical Center History, G. D_ B_, M.D., undated
Northwest Mississippi Regional Medical Center Discharge Summary, G. D_ B_, M.D., undated
Helena Regional Medical Center Cumulative Report Final, dtd July 18, 2005
 Ltr from N _ , T_ C_, to Phi l lips Community College of the University of Arkansas, dtd July 28, 2005
Unofficial Transcript, Phil l ips Community College (2 pages)
 Certificate for Workforce Training, State Board of Workforce Education and Career Opportunities, Management Course: Coaching and Developing Others, dtd May 20, 2004 (2 copies)
 Certificate for Workforce Training, State Board of Workforce Education and Career Opportunities, Management II Course: Facilitating Teams, dtd June 10, 2004
 Certificate for Workforce Training, State Board of Workforce Education and Career Opportunities, Management Course: Management II Course: Promoting Teamwork and Cooperation, dtd June 15, 2004
Certificate for Workforce Training, State Board of Workforce Education and Career Opportunities, Management Course: Management III Course: Leading Teams, dtd May 20, 2004
Certificate for Workforce Training, State Board of Workforce Education and Career Opportunities, Management Course: Management II Course: Solving Problems, dtd June 17, 2004
Certificate of Completion, Supervisor Training, on Recognizing the Signs and Symptoms of Drug and Alcohol use in the Workplace, dtd September 14, 2004
Certificate of completion, Incipient Fire Brigade – 24 hours, from the Arkansas Fire Academy, dtd October 21, 2004
 N _ Performance Review, dtd May 30 , 2003 (5 pages)
 Commendatory Performance ltr from B_ D_, N _ Construction Supervisor, dtd May 28, 2003
N _ Performance Review, dtd May 10 , 2002 (5 pages)
 Phillips Community College Business Office, Statement of Student Account, dtd Aug 23, 2005
 Work ID , Office of Emergency Services (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19891117 - 19900 716                COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 19900 717              Date of Discharge: 19921223
Length of Service (years, months, days):

 Active: 02 05 07 (does not include lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 35 days
         Confinement:              30 days

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 3 6

Highest Rank: LCpl                                   MOS: 1371
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (7)                                Conduct: 4.0 (7)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksman, National Defense Service Medal, Southwest Asia Service Medal (w/1 star), Letter of App reciation (2 nd Award), Meritorious Mast, Kuwait Liberation Medal.


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Drug abuse (administrative discharge board required but waived), authority: MARCORSEPMAN 6210.5.

 Chronological Listing of Significant Service Events :

891116:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

920207:  Counseling: Advised of restrictions apply (sic) (On or about 920123 SNM was in violation of Article 86: Unauthorized absence for a period of about 24 hours.) N ecessary corrective actions explained, sources of assistance provided, discharge warning issued.
920304:  Counseling: Advised of deficiencies in performance and conduct (Writing a bad check: failure to maintain accurate checking account records and failure to maintain sufficient funds for checks written.) N ecessary corrective actions explained, sources of assistance provided, discharge warning issued.
920716:  Applicant to UA(AWOL) .
920722:  Applicant from UA(AWOL) at 1030 (6 days/surrendered) .
920805:  Applicant to UA(AWOL) .
920903:  Applicant from UA(AWOL) at 0730 (29 days/surrendered).
92 09 30*:         Applicant submits unconditional waiver of administrative discharge board. Notes that his defense counsel (1stLt C. L. A_, USMC) “has not attached any enclosures in conjunction with this request.” Defense counsel also signs waiver. (Document dtd September 30, 1992, which appears to be an administrative error.)

92101 4 :  Memorandum of Pretrial Agreement ico United States v. D_ L. G_ (Applicant) . Applicant “agree(s) to enter a voluntary plea of GUILTY to the charges and specifications listed below at a summary court-martial and waive my right to a hearing at an administrative discharge board, prov i ded the convening authority agrees to withdraw the charges and specifications against me from the pending special court-martial. I understand that waiving my right to an administrative discharge board will result in a misconduct discharge under other than honorable conditions (emphasis added). Applicant “also agree(s) to enter into a Stipulation of Fact attached to this pretrial agreement as Appendix 1” and agreed “to the Summary Court-Martial Officer’s use of, and consideration of Appendix 1 during the providency and sentencing phases of the trial. ”
         Charges: Charge I: Violation of the UCMJ, Article 86, Plea: Guilty
         Spec 1: UA from 920716 to 920722, Plea: Guilty
         Spec 2: UA from 920805 to 920903, Plea: Guilty
         Charge II: Violation of the UCMJ, Article 112a, Plea: Guilty
         Spec: Wrongful use of a controlled substance, Plea: Guilty
          Stipulation of Fact (dtd 7 October 1992): I, Lance Corporal D_ L. G_ (Applicant), stipulate that the following statements are true:
1.       That I was a member of the 7 th Engineer Support Battalion which is stationed at Camp Pendleton at the time of both my unauthorized absences.
2.       That I did not have authority to absent myself from 7 th Engineer Support Battalion, on 16 July 1992 or on 5 August 1992.
3.       That I realized that I was entering periods of unauthorized absence.
4.       That I did not have permission from anyone in a pos i tion of authority to be absent.
5.       That I was not forced to enter into an unauthorized absence status.
6.       That I was not physically prevented to return to my unit.
7.       That I could have returned to my unit if I wanted to.
8.       That I left my unit on 920716 and did not return until 920722.
9.       That I later left my unit on 920805 and did not return until 920903.
10.      That I used a controlled substance, which was marijuana on about 22 July 1992.
11.      That I kn e w that the use of marijuana was wrong.
12.      That I was in Oceanside, California at the time I used the controlled substance.
13.      That I knew that I did not have authorization to use the controlled substance.
14.      That I was not forced to use the controlled substance.
15.      I was no acting pursuant to a legitimate law enforcement activity nor was I performing an authorized medical duty.
16.      I knew the substance was marijuana because it was a green leafy substance that smelled and looked like marijuana.
17.      I ingested the substance by smoking it.
18.      I did not have authorization to use the drug and I could have avoided using the substance if I had wanted to.
 Signed (C. L. A_, 1 st Lieutenant, U.S. Marine Corps, Defense Counsel)
Signed (D_ L. G_ (Applicant), Lance Corporal, U.S. Marine Corps, Accused)
Signed (B. R. G_, Captain, U.S. Marine Corps, Trial Counsel)
921021:  Summary Court-Martial.
          Charge I: V iol Art 86 UCMJ:
         Spec 1: On 920716, w/o Auth abs himself fr his org until 920722.
         Spec 2: On 920805, w/o Auth abs himself fr his org until 920903.
         Charge II: Viol Art 112a UCMJ :
         Spec: On or about 920722, wrongfully use marijuana .
          Plea: to all Charges and the specifications thereunder, guilty.
 Finding: to all Charges and the specifications thereunder, guilty .
          Sentence: Confinement for 30 days, forfeiture of $400.00 pay per month for 1 month, reduced to E-1.
         CA action 921030: Sentence approved and ordered executed.

921030:  Commanding Officer, Bravo Company, recommends to Commanding Officer, 7 th Engineer Support Battalion that Applicant be administratively discharged from the U.S. Marine Corps by reason of misconduct due to drug abuse. The basis for this recommendation is Applicant’s one prior Summary Court-Martial which evidence d the illegal use of drugs. Recommends characterization of service be under other than honorable conditions.

 921030:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with a characterization of service as under other than honorable conditions. The factual basis for this recommendation was one prior summary Court-Martial which evidenced the illegal use of drugs. (Date extracted from Applicant’s Acknowledgement of Rights to be Exercised or Waived During Separation Proceedings, dtd October 30, 2002.)

921030:  Applicant advised of rights and having consulted with counsel, elected to waive right to a hearing before an administrative discharge board. Applicant did not make an election of rights regarding including written statements in rebuttal to proposed separation. Applicant retained ri ght to obtain copies of the documents used to support the basis for the separation.
921120:  Battalion NJP for violation of UCMJ, Article 112a: Wrongfully used methamphetamines on or about 921015 aboard Camp Pendleton or in the surrounding community.
          Award: Forfeiture of $392.00 pay per month for 2 months, restriction and extra duty for 45 days. Not appealed.
921201:  Medical evaluation by M. M_, LT MC USNR (treatment facility not identified in record) :
         Findings of that examination indicate: SNM is dependent on alcohol.
          Dependence is primarily psychological ( Individual uses drugs or alcohol because he has to, cannot willfully stop.
          Psychosis: No
         Suicidal: No
         Related physical illness noted: No
          Recommendation: Residential Alcohol Treatment ARC, ARS (Alcohol Dependant only).
         Comments: History of THC use.
921207:  Judge Advocate Review of Summary Court-Martial ico United States v. D_ L. G_ (Applicant), Maj R_ M_ F_, USMC: Finds “ discrepancy in the record. Record of Conviction by Court-Martial must be corrected to reflect that the accused was convicted for wrongfully using marijuana vice amphetamine/methamphet amin e .” Maj F_ finds court-martial had jurisdiction over the accused and each offense as to which there is an approved finding of guilty; each specification as to which there is an approved finding of guilty states an offense; and the sentence is legal.

xxxxxx * :         Corrected Record of Conviction by Court-Martial issued. (note: not dated)

921207:  Veteran’s Administration Statement of Understanding: Applicant signed statement: Although I have been evaluated by a Medical Officer and Diagnosed as being drug or alcohol dependent, I do not desire to be enrolled in the Veteran’s Administration’s drug and alcohol program in conjunction with discharge.

 Undated:         Commanding Officer, 7 th Engineer Support Battalion, recommended to Commanding General, 1 st Force Service Support Group that the Applicant be discharge d under other than honorable conditions by reason of misconduct due to drug abuse.

9212xx:  SJA review determined the case sufficient in law and fact. Notes that Applicant “waived his right to an administrative hearing; however, he did not indicate whether or not he desired to submit any statement in rebuttal.” SJA notes that Applicant did not submit any statement and opines that “By his inaction, respondent (Applicant) waives written rebuttal.”

921212:  GCMCA, Commanding General, 1 st Force Service Support Group, directed that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.

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 19921223 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).

In the Applicant’s issue contending that his court-martial was swift and unjust, the Board found no impropriety or inequity. The record clearly demonstrates that Applicant, with the advice of defense counsel, offered to plead guilty to the wrongful use of marijuana at a summary court and to waive his administrative discharge board in exchange for avoiding the possibility of a special court-martial conviction and exposure to possibly more severe punishment if convicted. Nothing in the record indicates that Applicant’s offer to plead guilty and to stipulate to the fact that he did wrongfully use marijuana was not knowing and voluntary. Applicant was discharged for misconduct due to drug abuse, behavior to which he admitted at the time, and which he does not now deny. Relief is not warranted.

 The Board viewed Applicant’s issue of “My decorations, medals, badges, citations and campaign medals” as implying that Applicant’s characterization of service of under other than honorable conditions was not warranted by the positive aspects of his overall service. Characterization of service as general (under honorable conditions) 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. Characterization of service as under other than honorable conditions is warranted when the reason for separation is based upon behavior that constitutes a significant departure from the conduct expected of a Marine. 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. In addition to Applicant's summary court-martial conviction for his admitted illegal use of marijuana, a violation of Article 112a of the UCMJ, the Applicant’s service was also marred by 2 retention warnings for unauthorized absence and writing a bad check, summary court-martial conviction for violations of Article 86 of the UCMJ (2 periods of unauthorized absence) and the award of nonjudicial punishment (NJP) for a second violation of Article 112a of the UCMJ (wrongful use of amphetamine/methamphetamine) while pending administrative discharge. The NDRB advises the Applicant that certain serious offenses warrant separation from the Marine Corps in order to maintain proper order and discipline. Violation of Article 112a is considered a serious offense and a punitive discharge is authorized if adjudged at a special or general court-martial. An upgrade to general (under honorable conditions) would be inappropriate. Relief is therefore denied.

The Applicant contends that he was denied medical treatment. The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use. The Applicant’s uncorroborated allegations that he was denied assistance and counseling for his “mental state or rehab” 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.

For the Applicant’s edification, DoD disability regulations do not preclude a disciplinary separation. SECNAVINST 1850.4C stipulates that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.

The Applicant provides documentation of his post-service behavior and conduct. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided evidence of his continuing educational pursuits and his employment performance and training as documentation of post-service accomplishments. The Board found that the Applicant's efforts need to be more encompassing than that provided. For example, the Applicant could have also produced documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. Therefore, no relief will be granted.

In regards to the Applicant’s issues “ Need VA Health care for Gulf War Syndrome” and “To Futher education through GI Bill and use VA Benefits Programs”, t he Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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. Paragraph 6210, Misconduct , of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 .


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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