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USMC | DRB | 2005_Marine | MD0501498
Original file (MD0501498.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. MD05-01498

Applicant’s Request
The application for discharge review was received on 20050907. 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 20060612. 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 and from an attached letter to the Board:

“While in Afghanistan I had a confrontation with my team leader. I inadvertently went to the burn pit without Ammo for my Weapon, while out there I was stopped by a General who asked me where was my ammo? I stated to him that I did not have any because of that incident I, along with my platoon leader, Staff Sergeant and Team Leader had to go see the General. The General basically said not to let it happen again and dismissed us. The Team leader was so upset in with me that when we returned to the tent he struck me on my left Jaw. I did not hit him back for fear of being court Martial, after he hit me he instructed me to fill to Ammo containers with sand and had me run around the base with them. After approximately a half an hour the Staff Sergeant ordered him to stop. My Staff Sergeant asked if I were ok I replied no, he then sent me to the corpsman in my platoon for medical attention. After an Officer looked at my Jaw he realized that it was broken, he sent me to an Army Hospital to be treated. My Jaw was wired shut. After a few days I was sent back to the United States to Camp Lejeune, North Carolina. Because of that incident my love for the Marines faded and I decided that it would be best if I were to get out. I was proud being a Marine, I did everything asked of me but it seemed as if I was not appreciated and it lower my Morale I wanted to stay in the Marines but I knew under the circumstances I would not be effective. I feel the reason I deserve to have my character of service upgraded is because of the Awards I received and the fact that I served my country in Afghanistan. I was in line to be promoted to E-4 Thanks in advance for your consideration.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20030331 – 20030427               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20030428             Date of Discharge: 20050128

 Length of Service (years, months, days):

 Active: 01 09 00 (Does not include lost time.)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 09 days
         Confinement:              None

 Age at Entry: 22

 Years Contracted: 4

Education Level: 12                                 AFQT: 32

 Highest Rank: PFC                                   MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (3)                                Conduct: 4.1 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, National Defense Service Medal, Rifle Qualification Badge (Marksman).


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 :

030325:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

031008:  NJP for violation of UCMJ, Article 115: In that Private M_, W_ C., U. S. Marine Corps, Alpha Company, Infantry Training Battalion, School of Infantry, Training Command, Camp Lejeune, did, at or about 1130, 29 September 03, attempt to seek medical treatment for chest pain, with the purpose to avoid training.
 Award: Forfeiture of $268.00 pay per month for 1 month, restriction for 14 days. Not appealed.

 031008:  Counseling: Advised of deficiencies in performance and conduct (Violation of article 115, malingering.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
040525:  Medical evaluation by Division Psychiatrist, 2d Marine Division, II MEF, found that the Applicant was diagnosed with Personality Disorder, Not otherwise specified, with Cluster B and Immature Features.
         Psychiatrist Comments: “The Applicant is not mentally ill and is responsible for his behavior. However, this member does manifest a longstanding disorder of character and behavior, which is of such severity as to interfere with his ability to function effectively in the military environment. Individuals with this type of personality disorder are unproductive and often consume considerable command attention and resources. The member has adjusted poorly to the demands of military service and is unmotivated for continued military service, despite appropriate leadership, counseling, discipline, and other interventions. Although not imminently suicidal or homicidal, the member nonetheless poses an immediate danger to himself and would be negatively impact unit effectiveness and morale if retained in military service.”
          -Potential danger to self and others
         Recommendation: That a 6105 entry be waived and that the member be processed expeditiously for an administrative discharge in accordance with MARCORSEPMAN paragraph 6203.3 by reason of unsuitability. In the examiner’s opinion, the patient does not posses a severe mental disease or defect for purposes of R.C.M. 706 examinations and is considered competent.
          Division Psychiatry has offered supportive follow-up to the service member pending administrative separation.

040525:  Medical Evaluation done by P_ M. M_ LCDR, MC, USN: 23 year old c/o anxiety and a desire to leave the Marine Corps. He had anxiety before enlisting he has used marijuana to cope with anxiety. While in Iraq he was struck in the jaw which resulted in a fracture, then was med-evaced. His anxiety was worse in Iraq but has continued since. Last week he went UA (10 days) and used THC while UA. He reports going UA to get out of the Marine Corps. He reports suicidal thought driving back yesterday and placed a knife to his neck after pulling over, “but couldn’t go through with it.”
         Decrease in sleep, appetite, concentration and energy. He drives around off base for recreation (still does this). Ruminating guilt regarding joining Marine Corps.
         A: Personality Disorder NOS, Depression with suicidal thoughts
         P: Psychological consult.

041209:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of personality disorder and misconduct due to drug abuse. The factual basis for this recommendation was the recommendation by the Division Psychiatrist on 25 May 04 and a statement confessing drug use.

041209:  Applicant advised of rights and having elected not to consult, elected to waive all rights.

041209:  Commanding Officer, 2d Battalion, 2d Marines, recommended to the Commanding General, 2d Marine Division, via the Commanding Officer, 2d Marines, the Applicant’s discharge with an other than honorable discharge by reason of personality disorder and misconduct due to drug abuse. The primary basis is misconduct due to drug abuse. Commanding Officer’s remarks: “On 25 May 2004, Private M_ was evaluated at the Division Psychiatrist’s office after expressing the desire to physically harm himself. Commander C_ diagnosed Private M_ with Personality Disorder, not otherwise Specified, with Cluster B and Immature Features. In addition, he recommend that Private M_ be processed for administration discharge.”

041213:  Commanding Officer, Regimental Combat Team 2, forwarded the recommendation, concurring and recommending approval. Commanding Officer’s remarks: “I concur with the recommendation was Private M_’s chain of command and the Division Psychiatrist that Private M_’s current mental state interferes with his ability to function effectively in a military environment. In addition, he has confessed to illegal drug use during his enlistment.”

041215:  Counseling: Advised of deficiencies in performance and conduct (Illegal drug use.), necessary corrective actions explained, sources of assistance provided.

041215:  Counseling: Advised of deficiencies in performance and conduct (Illegal drug use.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

050124:  SJA review determined the case sufficient in law and fact.

050124:  Commanding General, 2d Marine Division, II Marine Expeditionary Force, advised the Commandant of the Marine Corps (MMSB), that the Applicant will be discharged under other than honorable conditions by reasons of convenience of government due to a personality disorder and misconduct due to drug abuse. The primary basis for separation will be misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050128 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). The Board presumed regularity in the conduct of governmental affairs (D).

The DD Form 214 submitted by the Applicant and the one contained in the service record reflect Character of Service: General (Under Honorable Conditions); Narrative Reason for Separation: Completion of Required Active Service; and Separation Authority: MARCORSEPMAN PAR 1005. The Applicant’s military service records and complete discharge package, which were available to the Board for analysis, document that the Applicant was awarded Character of Service: Under Other Than Honorable Conditions; Narrative Reason for Separation: Misconduct; and Separation Authority: MARCORSEPMAN PAR 6210.5. Per reference D, the Board presumed the information contained in the available records to be accurate, that the DD Form 214 was issued with errors, and that the DD Form 214 should be corrected.
Whenever a Marine is involved in misconduct due to drug abuse, on the first offense, commanders shall process the Marine for administrative separation. There is clear evidence in the service record that the Applicant used a controlled substance (marijuana) by virtue of his admission on 20040525 and subsequent acknowledgment by signing two counseling entries on 20041215. Evidence of such misconduct may be used to characterize a Marine’s discharge as under other than honorable conditions.
The Applicant desires an upgrade based on quality of service. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as under other than 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. There is irrefutable evidence that the Applicant’s conduct during his time in the Marine Corps was not honorable. Indeed, the Applicant’s records also contain:
•         Non-judicial punishment proceedings on 20031008 for violation of UCMJ Article 115 Malingering and a
•         Retention warning entry on 20031008 for deficiencies in performance and conduct concerning violation of UCMJ Article 115 Malingering.
 The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate; therefore relief is 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. The Applicant can provide documentation to support post-service accomplishments or any other evidence related to the discharge at that time. 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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