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


FOR OFFICIAL USE ONLY


ex-PFC, USMC
Docket No. MD05-01535

Applicant’s Request

The application for discharge review was received on 20050912. 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 20060531. 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/or from an attached document/letter to the Board:

“Dear Navy Counsel Of Personnel Boards,

I joined the Marine Corps when I was a Senior in High School. It was the best decision I had ever made. I wasn’t doing well in school, and I had no motivation to really do anything with myself. One month after I graduated I went to boot camp. I had so many emotions running through my body. I was scared, excited, tired, and nervous. I didn’t know what to expect. As soon as I stepped of the bus on to those footprints, I knew my life was going to change forever. During boot camp I made many friends, learned, any skills and overcame many difficult challenges. I was the religious lay leader through out boot camp and went on to write the prayer that was said at out graduation. I was also meritoriously promoted to Private First Class. My family as well as myself were so proud.

I completed SOI at Camp Pendelton and went on to my base in Twentynine Palms, CA. Since I was from California, I was happy to be somewhat close to home. I was put in 3 ^rd LAR Delta Company. After I was in Delta Company for a year, we deployed to Japan for six months. We spent many nights in the field, I was able to go snowboarding on Mount Fuji(which I still brag about).I had the time of my life there. We returned home in July 2000. Two months later my Sergeant and myself had the privilege of going to MOUT school at Camp Pendelton. It was a three week training course that the SWAT team trains at also. During this training class we were doing a mission and a CS gas grenade was thrown into the room I was in. I put on my gas mask, but it was broken. I felt for a window to escape the fumes. As soon as I crawled out of the window, I rolled over a wall that was next to the building. On my side it was about three feet tall, but what I didn’t know was that the drop on the other side was ten feet. I broke three of my metatarsals when I fell. I had surgery later that day once my injury was confirmed. I was also sent home on medical leave for six weeks.

When I returned to Twentynine Palms I was treated different. The physical therapist said I was ready to go back to light duty work, but my foot was still giving me a lot of trouble. I had a surgical boot on my broken foot to support it, but it didn’t really help. My fellow Marines said I was using the boot to get out of work, but that wasn’t the case. I hated the fact that I couldn’t help out with anything. A few weeks later I had to go back to Camp Pendelton to get the surgical pins that were placed in my foot removed. The surgeon insisted the procedure would only take twenty minutes, it took over two hours.

The day after the surgery was the Marine Corps Ball. I wasn’t going to go, but I felt like I should to show my support to the Marine Corps. So my Fiancee and I went, I had the surgical boot on still and I had to walk with a cane. I had a Colonel come up to me and tell me how proud he was that I came. That made me feel really good about myself.

I thought the ridicule and disrespect that my fellow Marines in Delta Company were expressing towards me would stop, but it didn’t. For months I was constantly getting knocked down. This wasn’t my fault, the fact that I had to wear this surgical boot. I couldn’t handle it anymore. I started drinking heavily, almost twelve beers a night, sometimes more. A few weeks later I had to take a drug test with the rest of my Battalion. My sample was randomly picked. I tested positive for ecstacy. My wife and I had our own place out in town that we started renting a month before, right after we got married. I didn’t want to leave her out there by herself, (since I tested positive on my drug test, I knew I would get put on restriction), so I went UA. (By this time I was supposed to be medically discharged, but discharge was being delayed for reasons I didn’t know of). So my wife and I went to Colorado. We stayed there for a couple of months, but I knew I had to go back, so I did. I was put on restriction and was released with a dishonorable discharge on July 23 ^rd 2002.

Since my discharge, I have done a complete turn around. I was an armed security guard for over a year. Now I am pursuing my dream of being an Electrical Apprentice.

I regret everything I did after I broke my foot at MOUT school. If I could do it all over again, I would have sought counseling to avoid the depression.

I would like to have my discharge changed to a General Honorable Discharge. This way I can get my foot looked at again, because it still hurts and I can’t run anymore. This is very important to me because I have a two year old son and I want to be able to enjoy sports with him.

Once again I am very sorry. Thank you for your time

Sincerely,
R_ L. M_(Applicant)

Please feel free to contact me at anytime if you have any further questions.

(Applicant’s address deleted)
(Applicant’s telephone numbers deleted) ”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 1 and 4)

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PART II - SUMMARY OF SERVICE

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

         Inactive: USMCR (DEP)    19970725 - 19980720      COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 19980721             Date of Discharge: 20020723

Length of Service (years, months, days):

Active: 04 00 03 (Does not exclude lost time.)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 100 days
         Confinement:              None

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 35

Highest Rank: LCpl                                  MOS: 0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: 3.9 (9)                                Conduct: 3.9 (9)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert Badge (2nd) Marine Corps Good Conduct Medal, Sea Service Deployment Ribbon, National Defense Service Medal

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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 :

970721:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

970725:  Pre-service waiver for granted.

990628:  Counseling: Advised of deficiencies in performance and conduct (Unsatisfactory performance; recent alcohol related incident on 990502; specifically, being intoxicated while coming through the main gate at MCAGCC as a passenger while being under the legal age to consume alcohol.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990720:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of Aug 99 because of lack of judgment, failing to obey orders. Applicant chose not to make a statement.

000401:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of M _ 2000 because of lack of leadership. Applicant chose not to make a statement.

UNDATED:         Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Apr 01 because of insubordination/recent counseling.

010911:  Applicant found qualified for separation/PEB.

010929:  Applicant to unauthorized absence at 0530 on 010929.

011001:  Applicant from unauthorized absence 011001 (2 days).

011015:  NJP for violation of UCMJ, Article 86: Absent without leave, in that SNM, did, on or about 0530, 29 September 2001, while aboard 3 ^rd Light Armored Reconnaissance Battalion, 29Palms, CA 92278, without authority absent himself form his appointed place of duty, and did remain until on or about 1 October 2001.
         Award: Forfeiture of $304 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

011113:  NJP for violation of UCMJ, Article 86: Absent without leave: in that SNHM, did on or about 2155, 6 November 2001, while aboard 3 ^rd Light Armored Reconnaissance Battalion, at Company C, without proper authority fail to be at his appointed place of duty to wit: Company C formation at 0600.
Violation of UCMJ, Article 134, Drunkenness incapacitation for performance: in that SNM, did, on or about 01 November 2001, while aboard 3 ^rd Light Armored Reconnaissance Battalion, at Company C, as a result of wrongful previous overindulgence intoxicating liquor was incapacitated for the proper performance of his duties.
         Award: Forfeiture of $322 per month for 1 month, restriction and extra duty for 14 days, reduction to E-X. Not appealed.

020123:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 020114, tested positive for MDMA.

020131:  Applicant refused Medical Officer Evaluation.

020212:  NJP for violation of UCMJ, Article 92: Failure to obey an order or regulation: in that SNM, did, on or about 14 January 2002, violate a lawful general order, to wit: MCO 1000.10 dated 13 December 1996, by testing positive on a urine test.
Violation of UCMJ, Article 112a: Drug offenses: in that SNM, did, on or about 23 January 2002, wrongfully use a controlled substance, to wit: ECSTACY, confirmed by NAVDRUGLAB SAN DIEGO CA//41//, batch # 0146/002, lab # S0201335025.
         Award: Forfeiture of $619 per month for 2 months, restriction and extra duty for 00 days, reduction to E-2. Not appealed.

020218:  Commanding Officer, 3d Light Armored Reconnaissance Battalion, 1 ^st Marine Division, MARFORPAC, Twenty-nine Palms, CA recommended Applicant’s discharge under other than honorable conditions due to his wrongful use of illegal drugs.

020301:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct, specifically drug abuse and pattern of misconduct. The factual basis for this recommendation was wrongful use of MDMA (Ecstacy) as confirmed by NAVDRUGLAB msg date R 232040Z Jan 02 ZYB PSN 648196S34, Lab Batch S0201335 0146/002. You were fully aware of the Marine Corps policy on illegal drug use and willfully chose to violate that policy.


020308:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

020314:  Commanding Officer, 3d Light Armored Reconnaissance Battalion, 1 ^st Marine Division, MARFORPAC, MCAGCC, Twenty-nine Palms, CA recommended Applicant’s discharge under other than honorable conditions by reason of misconduct, specifically drug abuse and pattern of misconduct. Private First Class M_(Applicant) (social security number deleted)/0311 wrongfully used MDMA (Ecstacy) as confirmed by NAVDRUGLAB msg date R 232040Z Jan 02 ZYB PSN 648196S34, Lab Batch S0201335 C146/002.

020303:  SJA review determined the case sufficient in law and fact.

020411:  Applicant to unauthorized absence at 1130 on 020411.

02 0507 :  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.

020718:  Applicant from unauthorized absence at 1300 on 020718 (98 days/surrendered).

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020723 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 Applicant regrets his decisions made while on active duty. The applicant contends his actions that lead to misconduct were caused by reacting negatively to peer ridicule and suffering a service related injury. 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. The Applicant’s service was marred by the award of nonjudicial punishment (NJP) on 3 occasions for violations of Articles 86, 92, 134, and 112a of the Uniform Code of Military Justice (UCMJ). The Applicant’s misconduct included unauthorized absence, drunkenness and incapacitation for performance of duties, failure to obey an order, and wrongful use of a controlled substance. The Applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an upgrade of his characterization of service. Relief is therefore denied.

The Applicant requests a change in his discharge characterization so he can have his service related foot injury examined again. The NDRB advises the Applicant that the 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. Relief is therefore denied.

The Applicant contends he has turned his life around and is pursuing his dream of being an Electrical Apprentice. 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 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. 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. 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 .


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