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USMC | DRB | 2005_Marine | MD0501537
Original file (MD0501537.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-LCpl, USMC
Docket No. MD05-01537

Applicant’s Request
The application for discharge review was received on 20050913. 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 discharge review before a traveling panel closest to W-S N. C. The Applicant designated North Carolina Division of Veterans of Affairs as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in Washington, DC at the Washington Navy Yard. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060614. 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

No issues were submitted by the Applicant.

 Issues submitted by Applicant’s representative (North Carolina Division of Veterans Affairs):

“Consideration should be given on the following points:

 1. R_ (Applicant)’s military record indicates good character and job performance
through out his enlistment. The only blemish was his won testimony indicating marijuana use one time. During Mr. R_ (Applicant)’s service he submitted to numerous urine test. None of which indicate drug use.
2. Gunnery Sergeant A. L. L_ a 19 year Marine testified on Mr. R_ (Applicant)’s
performance he stated; “I didn’t have to worry about anything with what he said or did: Also not that Mr. R_ (Applicant) had no other disciplinary infractions. This Marines job performance after the one time marijuana use was above average.
3. One time use of marijuana (although wrong) can hardly be considered abuse;
had it not been for Mr. R_ (Applicant)’s own admission of this one time use there would have been no creditable evidence of drug use; nor was there diminishment in any areas of job performance.
4. Given that a preponderance of all the evidence indicates that Mr. R_
(Applicant)’s service was honorable with the exception of the one time marijuana use it would appear that justice and good conscience would dictate that General (Under Honorable Conditions) discharge should at least be granted.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2)
Copies of Applicant’s Separation Documents (33 Pgs)
Ltr from North Carolina Department of Administration, dtd September 6, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20010307 – 20010617      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010618             Date of Discharge: 20040914

 Length of Service (years, months, days):

 Active: 03 02 27
         Inactive: None

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

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 76

 Highest Rank: LCpl                                  MOS: 0451

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (7)                                Conduct: 4.5 (7)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Marine Corps Good Conduct Medal, Global War on Terrorism Expeditionary Medal (Kuwait), Sea Service Deployment Ribbon, National Defense Service Medal, Rifle Expert Badge (3 rd Award)


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 :

010306:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
031209:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of October 2003 because of pending legal issues. Applicant chose not to make a statement.

UNDATED:         Statement by First Sergeant R_ A. A_: On or about August 21, 2003 SSgt O_, from 2 nd TSB BN legal called to have me send over Lance Corporal R_, R_ T. (Applicant). Lance Corporal R_ (Applicant) is an Air Delivery Marine who has been implicated, by his own statement, for using drugs while attached to Air Deliver (AD).
         When I called LCpl R_ (Applicant) into my office, I read him his rights and asked him a series of questions, per the Commander’s guidance. When asked if he knew someone who was selling drugs he replied, “no”. When asked, “when did he use the drugs? He replied “at Onslow Beach, before leaving for the War, with LCpl C_. He went on to say the LCpl C_ gave him the Marijuana and he witness other Marines from AD during Marijuana as well. I initially thought he said that LCpl C_ sold him the Marijuana but after asking the question again, he indicated that he gave it to him.
         After questioning the Marine, I called SSgt Ortiz and he told me to make a statement concerning the information that was discussed between LCpl R_ (Applicant) and myself. Lt. Friedman, who is the Air Deliver Officer in Charge, was the witness for the rights and questioning period. I was then informed to have the LCpl report to Battalion legal but he was told, by BN legal, to report back to work.

040223:  Applicant notified of intended recommendation for discharge with the least favorable characterization being under other than honorable conditions. Commanding Officer, 2d Transportation Support Battalion comments: “I am recommending that you receive an Under Other Than Honorable conditions discharge. The factual basis for this recommendation was based on the statement of First Sergeant R_ A. A_, dtd 21 August 03.
040322:  Applicant advised of rights and having elected not to consult, elected to appear before an Administrative Discharge Board. Also the right to obtain copies of the documents used to support the basis for the separation.

040322:  Statement of understanding of treatment for alcohol/substance dependence. LCpl R_ (Applicant) refuses to accept treatment through the military and requested to go through the Veterans Administration Medical Center (VMAC) upon discharge.

040430:  Counseling: Advised of deficiencies in performance and conduct (Violation of articles 86 times 2. Being late for remedial on one occasion and late reporting to your work section on the other occasion.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
040615:  Commanding Officer, 2d Transportation Support Battalion, recommended to Commander, 2d Force Service Support Group that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was based on the Applicant’s incident of illegal drug use as identified in enclosure (4) and his overall suitability for retention. Commanding Officer’s comments: “Based upon enclosures (3) through (13). Lance Corporal R_ (Applicant) has been unable to effectively perform as an air delivery specialist because the natures of his Military Occupational Specialty because the nature of his Military Occupational Specialty requires a high degree of trust that I no longer can expect from him. His actions represent a total disregard for Marine Corps core values as well as the rules and regulations central to good order and discipline. Lance Corporal R_ (Applicant)’s failure to meet the standards of performance routinely expected of all Marines has negated his value to this unit and the Marine Corps. His willing disregard for the clearly articulated and well publicized policy pertaining to drug use highlights his lack of rehabilitative potential and suitability for further service.”

 040723:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that such misconduct warranted separation, and recommended discharge with an under other than honorable conditions.

040825:  SJA review determined the case sufficient in law and fact.

040830:  Commander, 2d Force Service Support Group, advised the Commandant of the Marine Corps (MMSB), that the Applicant will be discharged 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 20040830 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 DAV ( Division of Veterans Affairs) representative on behalf of the Applicant states, “one time use of marijuana (although wrong) can hardly be considered abuse; had it not been for Mr. R_ (Applicant)’s own admission of this one time use there would have been no creditable evidence of drug use; nor was there diminishment in any areas of job performance”. The NDRB advises the Applicant that his self-admission to drug use is considered as “wrongful use of a controlled substance” punishable under the UCMJ, Article 112a. Also, d espite 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. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and his service was equitably characterized. 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. 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





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