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USMC | DRB | 2006_Marine | MD0600174
Original file (MD0600174.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. MD06-00174

Applicant’s Request
The application for discharge review was received on 20051103. 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 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 and from an attached letter to the Board:

“I want to apply for benefits.”

“To whom it may concern:

          I would like to first of all thank everyone for taking the time to hear my case. I will prove without a shadow of a doubt that I have a legitimate case and my rights as a veteran be reinstated.
          I joined the Delayed Entry Program at 17 years of age. I was more than willing to dedicate four years of my life to a volunteer force. My father was an infantry man during Vietnam and served his country proudly. My father was and still is my hero and role mode. I wanted to make him proud and show my patriotism by following in his footsteps. Not only did my father serve with pride, he gave the respect to this great country that we live in today.
         After enduring three months of mental and physical training, I graduated from Parris Island. I was finally a Marine. We were told that this was our initiation into an elite brotherhood. We would forever be brothers in Arms. I still take great pride in knowing that I accomplished something very special that not all people can do.
         The point that I really want to get across is that I’m looking for forgiveness. I made a mistake and was punished very severely. I did complete my four year contract. Besides the one incident, I had a clean record. I received two promotions and was Awarded a Good Conduct Medal. I ask that my discharge be upgraded so that I may receive my Veteran’s Benefits. I sustained a few injuries that were job related and wish to receive for them.
         There is an old saying that goes something like this, “once a Marine, always a Marine.” I don’t want one mistake that I made as a kid to reflect over three years of honorable service. Now, I am a loving father, hard worker, a college student, and a husband trying to provide for his family. To error is human, to forgive is divine. Any special consideration upon my behalf would be greatly appreciated.

Sincerely,

M_ H_ (Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Character Reference ltr from C_ and K_ H_, mother and father, dtd October 10, 2005
 Character Reference ltr, from N_ E. W_, Owner/I _ B _ G_ , dtd July 26, 2003
 Character Reference ltr, from W_ J. M_, Production Controller, undated
Character Reference ltr, from S_ D. H_, dtd October 5, 2005
Character Reference ltr, from G_ H_, General Manager, dtd July 25, 2005
Character Reference ltr, from D_ A. M_, Daughter of J_ M_ M_, Chief, US Navy, dtd October 20, 2005 (2 pages)
 Ltr from Carteret County Government, H_ G_, Veterans Services Officer, dtd October 20, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19961230 – 19971112               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19971113             Date of Discharge: 20011109

 Length of Service (years, months, days):

 Active: 03 11 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: 63

 Highest Rank: C pl                                    MOS: 3531
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (8)              Conduct: 4.2 (8)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksmanship Badge



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 :

961228:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

 961230:  Pre-service waiver for drugs (MGD) granted.

 010214:  Counseling: Advised of deficiencies in performance and conduct (Violation of Article 91) . D ischarge warning issued. ( E ntry does not include necessary corrective action nor sources of assistance.)

010312:  Ltr from Medical Office, French Creek Area Clinic:
         CPL H_ (Applicant) is being recommended for administrative discharge for Left Patellar tendonitis that is unresponsive to treatment.
         The member has not received any received any pain relief or increase in physical endurance despite eighteen months of rehabilitation while on a limited duty board. Prognosis does reflect any benefit from additional limited duty. Orthopedics does not recommend surgical treatment. CPL H_ (Applicant)’s condition not only prevents PT but also affects performance of MOS.

 010322:  Limited Duty Medical Board Report , CDR M. J. H_, MC, USN, Convening Authority : 21 old male complains of left knee 12199 had left knee arthroscopic by Dr. F_ 7 Feb at NHCL
          Treatment Plan: Sports medicine, (illegible) , strengthening endurance.
         Limitations: (illegible)
         Period of Limited Duty : 6 months
          Parent Command Endorsement: The Applicant is presently assigned duties as Motor Vehicle Operator and can not be usefully employed at this command considering the medical restriction of activity.
          Comments: SNM drives for a living. He can not be employed in his MOS needs to be discharged. (Signed) Commanding Officer or designee.

010810:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 010807, tested positive for THC.

 010907:  Applicant advised of availability of VA treatment.

 010912:  NJP for violation of UCMJ, Article 112a: Wrongfully use of a controlled substance on or about 010807.
 Award: Forfeiture of $691.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. Not appealed.
010917:  Clinical Director (M. J. O_), Alcohol Treatment Facility, Naval Hospital, Camp Lejeune, NC, Evaluation Report for Substance Abuse: The Applicant was evaluated per references (a) and (b) on 7 Sep 01 by a credentialed provider as a result of a command referral. The diagnoses was Drug Abuse (Isolated Incident) and Alcohol Abuse.

 010924:  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 the NAVDRUGLAB Jacksonville FL msg 102227Z AUG 01.

010926:  Applicant advised of rights and having elected not to consult with counsel, elected to appear before an Administrative Discharge Board.

 011001:  Commanding Officer, 2 d Medical Battalion, recommended to Commanding General, 2d Force Service Support Group, that the Applicant be discharged under other than honorable conditions by reason of wrongful use/possession of a controlled substance. Commanding Officer’s comments: “This Marine, an NCO at the time of offense, has shown no remorse for his actions and clearly has violated the Marine Corps’ policy on illegal drug use. Allowing this Marine to detach at his EAS without an OTH would send the wrong message to Marines and Sailors. LCPL H_ (Applicant), has made it clear that he has no desire to be a Marine, therefore, retention would be detrimental to the moral, discipline and effectiveness of this organization. I recommend an Other Than Honorable conditions discharge .”
011106:  Administrative Discharge Board, based upon a preponderance of the evidence and by majority 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 and that the discharge not be suspended .
011106:  Applicant’s counsel, Capt M. A. C_, USMC, submits letter of deficiency in the Administrative Discharge Board to Commanding General, 2d Force Service Support Group, alleging that the Board improperly admitted into evidence and considered “Counseling Sheets” over counsel’s objection in violation of the Marine Corps’ counseling program requirement that any record or documentation is for use only by the junior and senior.

011107:  Ltr f ro m Senior Member, Administrative Discharge Board, dtd November 07, 2001. The Board recommended that the respondent be separated from the U.S. Marine Corps for misconduct due to drug abuse with an under other than honorable characterization of service.
011107:  Comman ding Officer, 2d Medical Battalion, forwards Administrative Discharge Board report to Commanding General, 2d Force Service Support Group agreeing with the Board’s findings and recommendations.

011108:  SJA review determined the case sufficient in law and fact. SJA addresses, and disagrees with , Applicant’s counsel contention that the Counseling Sheets were improperly admitted.

011109:  Commanding General, 2d Force Service Support Group directs that Applicant 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 20011109 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, the Board found there is credible evidence in the record that the Applicant used illegal drugs. 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. The Applicant’s service was marred by counseling for violation of Article 91 of the UMCJ and a nonjudicial punishment proceeding for violation of Article 112a of the UCMJ. The NDRB advises the Applicant that certain serious offenses warrant separation from the Marine Corps in order to maintain proper order and discipline. Violations of Article 91 and 112a are considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial. The evidence of record 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 1850.4D 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 submitted 6 letters of recommendation from members of his family, friends and employers as documentation of post-service accomplishments. 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's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, 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 regard to the Applicant’s desire to “apply for benefits”, 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.

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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