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USMC | DRB | 2006_Marine | MD0600027
Original file (MD0600027.rtf) Auto-classification: Denied


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

ex-Cpl, USMC
Docket No. MD06-00027

Applicant’s Request
The application for discharge review was received on 20050927. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area or a personal appearance before a traveling panel closest to Seattle, WA . The Applicant did not designate a 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 at the Washington Navy Yard in Washington, D.C. Metropolitan area. 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 20060824 . 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 General (Under 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:

 “I am requesting an upgrade to an honorable discharge because everyone in the trails after my administrative separation board were found not guilty for the same charges put against me. Enclosed are the outcomes of the two court martial that have been over-turned due to insufficient evidence. The two people being court martial were charged with the same offence as I was and were found not guilty. One of the accused was named in my statement and I in his, but my statement was found unreliable because of the way it was taken during the investigation, during his court-martial. My lawyer at the time gave me different advise than the other SNM’s and it has affected me in a bad manner. The statements that were written and that we signed were written against our wills and during stressful times (during the middle of Operation Iraqi Freedom in Kuwait). I was informed that had no choice in my actions for my administrative separations board and was harassed into taking that option. I feel that I was not given full knowledge of my rights and I was harassed into signing a statement saying I did the things I said, all in the name of catching the person who cut our parachutes. In the end I was not afforded the chance to appeal, and my career was stripped from me unjustly. I am requesting that the board review all of the information enclosed and the information on the trials of Cpl D_, J_, Cpl C_, C_, and LCpl C_ T_. All court martial took place at Camp Lejeune, NC. I would also like the board to review the methods that were taken by 2 nd Transportation Support Battalion, Camp Lejeune in reviewing and processing my re-enlistment requests.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2)
Applicant’s DD Form 215
Ltr from D. L. K_, Head, Records Section, Board for Correction of Naval Records, dtd February 16, 2005
Applicant’s application for correction of military record, dtd January 18, 2005
Report of results of trail of Cpl J_ G. D_, undated
Report of results of trail of LCpl T_ A. C_, undated
Ltr from Commanding General, 2d Force Service Support Group, dtd July 22, 2004
Ltr from Commanding Officer, 2d Transportation Support Battalion, 2d Force Service Support Group, dtd July 13, 2004
Ltr from Chief Warrant Officer 2 L_ N. S_, Administrative Law Officer, dtd July 19, 2004
Administrative Discharge Board Finding and Recommendations Worksheet, dtd July 13, 2004 (2 pages)
Summary of witness testimony, undated (6 pages)
General Court-Martial, Grant of Testimonial Immunity and order to testify, dtd January 27, 2004
Supervisors’ Statements (4 pages)
Applicant’s Letter of Rebuttal, dtd February 19, 2004 (3 pages)
Ltr from Campbell University, M_ L. H_, Dean of the College of Arts and Sciences, Associate Professor of Biology, dtd February 12, 2004
Applicant’s MCTFS print-out, dtd February 19, 2004 (5 pages)
 Facsimile Coversheet and Character Reference ltr from CWO3 H_, dtd January 13, 2004
Certificate of Promotion to Corporal, dtd September 2, 2001
Certificate of Achievement, dtd May 2002
Certificate of Completion of Parachute Rigger Course, dtd April 9, 2001
 Certificate of qualification as a Navy and Marine Corps Parachutist, dtd August 20, 2001
Certificate of Completion Jumpmaster course, dtd August 16, 2002
Certificate of Completion of RAM-AIR Parachute systems course 8B-F47/860-F5, dtd May 24, 2002
Certificate of Completion of Cold Weather Environmental Survival Training D-2G-0012 [date unreadable]
Certificate of Completion of Marine Combat Instructor of Water Survival, dtd November 1, 2002
Record of trail excerpt (Applicant’s testimony), undated (13 pages)
Ltr from First Lieutenant M_ D. F_, Facilities and Logistics Officer, MV-22 Osprey, dtd May 25, 2004
Character Reference ltr from GySgt K_ R. J_, dtd June 2, 2004
Reenlistment documentation, dtd July 17, 2007 (2 pages)
Applicant’s Chronological Record of Medical Care, dtd June 19, 2002 (2 pages)
Medical notes on Applicant by K_ U_, MD, undated
Medical notes on Applicant by K_, staff psychiatrist, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20000225 – 20000723               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20000724             Date of Discharge: 20040723

 Length of Service (years, months, days):

 Active: 04 00 00
         Inactive: None

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

 Age at Entry: 19

 Years Contracted: 4

Education Level: 12                                 AFQT: 64

 Highest Rank: Cpl                                   MOS: 0451

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 ( 8 )                                Conduct: 4.5 ( 8 )

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Global War on Terrorism Expeditionary Medal (Kuwait), Sea Service Deployment Ribbon, National Defense Service Medal, Rifle Sharpshooter Badge, Pistol Marksmanship Badge


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

 Chronological Listing of Significant Service Events :
000223:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

000225:  Pre-service waiver for drugs and traffic violations granted.

020619:  French Creek Clinic, Camp Lejeune, NC: Applicant referred by BMAT corpsman for “anxiety attacks.” Evaluated by K_ L_, MD, LT, MC, USNR. Assessment: Anxiety/Depression. Plan: 1.) Paxil 20 mg po qd DS#30 RF0. , vital signs as noted, alert and oriented x 3. 2.) Ref to community counseling center/Family Srvc. Ct. numbers provided. 3.) Paxil to be titrated up by 10mg po qwk until effective. Max dose 50 mg poqd. 4.) Pt understands tx/plan. 5.) F/u next Thurs 27 June 2002 with me. 0730.

020627 :  French Creek Clinic, Camp Lejeune, NC: Applicant reports for follow-up for 020619 visit. Assessment: Anxiety/Depression. Plan: Refill Paxil, follow-up in one month or as needed. [Date extracted from 020619 medical evaluation]

030402:  Psychiatry Evaluation by Capt K_ A_, MC, USN. Diagnosis: AXIS I: Adjustment Disorder with depressed and anxious mood. Occupational Problem. AXIS II: 0. AXIS III: 0.

030716:  NJP for violation of UCMJ, Article 91: On or about 0730 at 030603, was both belligerent and disrespectful in language towards Sgt M_.
         Violation of UCMJ, Article 92: On or about 0730 at 030603, disobeyed BnO 11101.1 by having a visitor in her room before visitation hours.
         Award: Written letter of reprimand. Not appealed.

030716:  Acknowledged understanding of eligibility but not recommended for promotion to Sgt for the month of Aug because of legal.

040218:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. Applicant informed the least favorable character of service possible was under other than honorable conditions. The factual basis for this recommendation was based on the NCIS Investigation dtd 2 May 03.

040219:  Applicant’s Letter of Rebuttal to the Administrative Board.

040415:  Applicant advised of rights and having elected not to consult, elected to appear before an Administrative Discharge Board.

040430:  Statement of understanding of treatment for alcohol/substance dependence. Cpl S_ N. M_ (Applicant) refused treatment through the military and did not desire treatment through the Veterans Administration Medical Center (VMAC) upon discharge.

040519:  Commanding Officer, 2d Transportation Support Battalion, 2d Force Service Support Group, recommended the Applicant be separated under other than honorable conditions by reason of misconduct due to drug abuse.

 040527:  Supplemental notification of separation proceedings . Applicant informed that if she is separated with a characterization of service as under other than honorable conditions, she will be administratively reduced to pay grade E-3 upon separation.
040527:  Applicant acknowledged understanding of supplemental notification of separation proceedings.

 040713:  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 under other than honorable conditions. The board recommended the Applicant’s discharge be suspended.

040713:  Commanding Officer, 2d Transportation Support Battalion, 2d Force Service Support Group, concurred with the recommendation of the Administration Board’s findings and recommended the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse and that the discharge be suspended.

040722:  SJA review determined the case sufficient in law and fact.

040722:  Commanding General, 2d Force Service Support Group, directed the Applicant’s discharge with a general (under honorable conditions) character of service by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 200 4 072 3 by reason of misconduct due to drug abuse (A and B) with a service characterization of general (under 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 (C and D).

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. An under other than honorable conditions or general 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 nonjudicial punishment proceedings for violations of Articles 91 and 92 of the UCMJ. Additionally the evidence of record shows the Applicant violated Article 112a of the UCMJ, an infraction that was not adjudicated. The Applicant’s conduct is a violation of the special consideration afforded her at her waivered-enlistment. The Applicant’s violations of Articles 91, 92 and 112a of the UCMJ are considered serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction by a special or general court-martial. 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 implies that her discharge is inequitable because Marines who went to court-martial for the same infractions as the Applicant were found not guilty. The Applicant further implies another inequity in that her counsel provided her “different advise” [sic] than that given other Marines. Further, the Applicant implies her discharge was improper because she signed a statement against her will during a stressful time. Finally, the Applicant contends that she was not “afforded the chance to appeal.” Mandatory processing for separation is required for Marines who abuse illegal drugs. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that she did not use illegal drugs, was not afforded proper legal counsel or that she was forced to sign a statement against her will. Neither the evidence submitted by the Applicant nor the evidence of record support the Applicant’s contention that she was denied due process. The Applicant was subject to an administrative discharge board which found that she had committed misconduct due to drug abuse and recommended her separation under other than honorable conditions. Relief denied.

The Applicant requests that the Board review the “methods taken by 2 nd Transpiration Support Battalion, Camp Lejeune in reviewing and processing [the Applicant’s] re-enlistment requests.” The Board’s authority is limited to the review of the propriety and equity of an Applicant’s discharge. The Board could find no indication in the record or the documentation submitted by the Applicant that the Applicant’s discharge was improper or inequitable on the basis of the Applicant’s command’s actions regarding her attempts at reenlistment. Relief is not warranted.

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. 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. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 91, insubordinate conduct, Article 92, disobey lawful order/regulation or Article 112a, wrongful use of a controlled substance.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

D. 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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