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


FOR OFFICIAL USE ONLY


ex-PFC, USMC
Docket No. MD06-00200

Applicant’s Request

The application for discharge review was received on 20051107. 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 hearing before the Board in the Washington, D.C. Metropolitan area . In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. 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 and reason for 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 from an attached letter to the Board:

“To whom it may concern,

This is the statement of N_ C_ R_ (Applicant) soc. (deleted) While serving in the United States Marine Corps, it was brought to my attention in November of 2004 that I tested positive for the illegal substance Cocaine. I tested positive for this drug on October, 19 2005. I Can honestly say I have never used the drug or anything that might have it in it. Including prescription drugs. When I was informed I tested positive, I told my 1 ^st Sgt at the time first Sergeant C_ that I believe the only thing it could have been was my medication. Which I had told them I was taking before I took the urinalysis test. I had took a urinalysis that past Thursday and an other following the Thursday I failed the urinalysis. In which I past both. They informed me the amount was very small. But still over the DOD limit. I then went over my past events in which I told them the only time I went out was on a Saturday at a bar in Carlsbad near my apartment. I believe it couldn’t have happened that day because after I got drunk I caught a cab home. We then went over all my medical record and all the doctors told me the only way you can pop for cocaine is by taking amoxicillin, or by getting a shot of cocaine. After we were informed of this my legal representations said this will be a sure lost for sure unless we can find a witness, you can remember something from that night. He told me about how it would be stupid to take this matter to a court martial because the Colonel in charge of the proceedings had been finding anyone who failed a urinalysis guilty. Those who were found guilty who get a Bad conduct discharge and face up to 60 days in the brig as well as having a federal drug conviction. With me having a family he informed me that it would not be worth it to fight. I told him I would fight it because I will not admit to something I didn’t do, this was in November of 2004. By February of 2005 after doing some research of what all I could lose to taking the matter to court marital I begin to way my options. I told him I could never pled guilty of something I didn’t do. However I would plead guilty to the possibility of something being in my system that could have made me test positive I.e. medication. The prosecutor agreed and drop the case to NJP on ground that I pleaded guilty to the possibility. I went to NJP and was giving 60 days or restriction half of one months pay taken away and reduction in grade. I would also like to point out that during this period of time I was taken away from my company and unit and placed in a unit that didn’t rate Heavy equipment operators and performed 12/14 area maintains and did some task which one might believe is well outside of what my duties were. Such as scraping tile on an old barrack and painting as well as cleaning up human waste without proper cleaning gear. In which I never complained about. In thinking that the punishment that I had been though all ready would have taken some effect on the punishment I would undergo. During the period of the time it was said I failed the urinalysis until the time I was discharge I never once neglected my duties and always volunteered myself for operations even after I had been secured from my work. I kept a positive attitude until the day I was released from active duty and even after. Which brings me to the main reason I’m requesting my discharge be upgraded. On my last day at BSSG-1 I request that I would be allowed to get medication before I left. The answer I received from a new female first sergeant at Head Quarters company is. I’m sick of that damn marine tell him no, it’s not our problem anymore. She then to a staff sergeant to escort me out and make sure I turn in my id at GPAC I had I talk with the staff sergeant and told him the situation and he told me there is nothing you can really do about here we have a good Marine with a clean record and they won’t give you a second chance, on the other hand you have Marine who mess up and don’t even want to be marines and they have Other Marines bending over backward to keep them in. It’s just who you know. It’s sad but that is the way it is. I applied for VA benefits after I got out of the military. They told me due my discharge they can’t help me. I was pending medical discharge before all this happened, this incident has prevented me from getting a job In the civilian world and prevent me from even getting medication. I have slight brain damage which was caused from a fall in Iraq. At first all I had was headaches. Until about a week later when I suffered from syncope which are blackout spells and very frequent migraines. I have no job and no money. I have no way to get the medication I need. For the last 3 months I have been in lots of pain off and on, and I have no way to stop it. This upsets me because the first sergeant who told me to go get out of her office said the VA would take care of it. Unfortunately she Lied. I can’t receive and treatment under other than honorably conditions. All I’m asking for is a way to receive medical help. I thank you for you time.

Sincerely, ”
(unsigned)
Documentation

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

Applicant ltr dtd August 31, 2005 (2 pages)
Applicant’s DD Form 214 (Member 4)
Memorandum from Staff Judge Advocate, dtd April 8, 2005
Ltr from Department of Veterans Affairs, dtd May 26, 2005 (5 pages)
Separation/Travel P ay Certificate
Charge Sheet
Claim Application from Disabled American Veterans National Service Offices
Applicant Statement In Support of Claim, dtd May 30, 2005
Self-Help Guide to Discharge Upgrading (4 double-sided pages)
Brigade Service Support Group-1 c heck -o ut s heet
Pro’s and Con’s Worksheet for semi-annual marking period 040101 - 040630 , dtd June 07, 2004 (4 pages)
Counseling Sheet, dtd April 28, 2004
Heavy Equipment Platoon Monthly Counseling Worksheet, dtd August 28, 2004
Heavy Equipment Platoon Monthly Counseling Worksheet, dtd July 31, 2004
Counseling worksheet, dtd June 2004
Pro ’s and Con’s Worksheets for semi-annual marking period 040101 - 040630 ( 2 pages)
Counseling worksheet, dtd April 2004
Counseling worksheet, dtd May 2004
Semi-Annually Counseling worksheet , undated
Initial Counseling worksheet, dtd October 8, 2003
Ltr from Disabled American Veterans National Service Office, dtd September 22, 2005

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PART II - SUMMARY OF SERVICE

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

         Inactive: USMCR (DEP)    20010824 - 20011106      COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 20011107             Date of Discharge: 20050425

Length of Service (years, months, days):

Active: 03 05 19 (Does not ex clude lost time.)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 3 days ( Extracted from DD214)
         Confinement:              None

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 36

Highest Rank: LCpl                                  MOS: 1345

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: 4.2 (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, Marine Corps Good Conduct Medal, Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal (Iraq), Sea Service Deployment Ribbon w/1 Star, National Defense Service Medal, Certificate of Commendation, Meritorious Mast, Letter of Appreciation.

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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 :

010823:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

011107:  Preservice waiver approved by Commanding General, Eastern Recruiting Region, Code: W0157.

041109:  NAVDRUGLAB, San Diego, CA, msg 092222Z NOV 04, reported Applicant’s urine sample, received 041027, tested positive for Cocaine.

041119:  Preferral of Charge, Violation of the UCMJ, Article 112a. Specification: In that Lance Corporal N_ D. R_ (Applicant), U.S. Marine Corps, on active duty, did at an unknown location, on or about 19 October 2004, wrongfully use cocaine. (Extracted from Applicant document submission.)

041201:  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 is the positive result on the urinalysis administered on 19 October 2004.

050119:  Commanding Officer, Headquarters Company, recommends to Commanding Officer, BSSG-1 that Applicant be administratively separated for misconduct, specifically Applicant’s documented drug abuse. Recommends characterization of service as other than honorable.

050209:  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

050210:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
         Specification: In that Lance Corporal N_ C. R_ (Applicant), U. S. Marine Corps, on active duty; did at an unknown location, on or about 19 October 2004, wrongfully use cocaine.
         Award: Forfeiture of $650.00 pay per month for 2 months (suspended for 6 months), restriction for 60 days. Not appealed.
         [Extracted from Applicant’s Supporting Documents (Charge Sheet) and Ltr from the Commanding Officer, dtd March 15, 2005].

050217:  Counseling: Advised of deficiencies in performance and conduct (The arrest documented on 24 September 2003 for assault and documented drug abuse a s evidence by positive results for cocaine in a routine urinalysis administered on 19 October 2004 and confirmed by Navy Drug Lab San Diego msg dtg R 092222Z Nov 04.) N ecessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

050303:  Applicant submits administrative separation rebuttal letter to Commanding General, 1 ^st Force Service Support Group, Subj: Request for Retention until end of Active Service . Applicant asserts “I believe I have done nothing wrong to the point where I should be separated from the Marine Corps. However, like I told Colonel R_, I do take full responsibility for the action I have been punished for. While serving in the Marine Corps, I have not consciously used cocaine or any other illegal substances.” Applicant offers explanation for positive cocaine urinalysis results: “Now I will give you a summary of the events that put me in the situation I currently in. I was medically evacuated from Iraq for having syncope episode; I was on a medication called Phenergan. Phenergan is a sedative type medication prescribed for nausea arid motion sickness. I was also given Tylenol for headaches. I suffered from headaches, dizziness and loss of coordination. Within of minutes after having these symptoms, I would black out for a period of approximately 3 to 5 minutes. The medication administered was for temporary relief until further testing could be done. On the night of October 18, 2004, I came home after work and laid down on the sofa because I had a headache. I started drinking alcohol because it seems to ease the pain. My roommate noticed I wasn’t looking too well, arid asked me if I was feeling all right. I told her I wasn’t and she asked me if I had taken my medicine, I hadn’t so she went to get my medication and came back with two pills that at the time I believed were the ones prescribed to me while I was in Iraq. I then went to my bed and slept until the next morning. During my NJP, the Colonel said that the story was odd. I didn’t understand what he talking about until after talking to other people about the subject. Everyone said that cocaine rarely comes in the form of a pill. When I asked my roommate about it, she said that she thought she had given me ecstasy, but said she felt no effects from them so thought they were bad pills. She said after taking them, she felt the urge to hurry up and get things done right away. I was told that those effects aren’t expected with cocaine. I feel like I have been put in a position that no matter what I do, I will lose. I have already been reduced in rank, had my liberty taken away from me, been deprived of seeing my son and little brother and had money taken from me. The only thing left is to kick me out of the Corps, and I beg of you Sir not to do that.”

050315:  Commanding Officer, Brigade Service Support Group-1, recommended to Commanding General, 1 ^st Force Service Support Group that the Applicant be discharged under other than honorable conditions by reason of drug abuse. The basis for this recommendation was the positive result on the urinalysis administered on 19 October 2004. Commanding Officer’s comments: “PFC R_ (Applicant) has included a statement indicating his desire to be retained to his EAS. He states that he takes full responsibility for his actions, yet at several points he indicates that he does not feel he has done anything wrong. I am confident that PFC R _ (Applicant) knowingly and willingly used cocaine. I am not convinced he will abstain from further drug use. For these reasons, administrative separation is the most appropriated course of action.”

050408:  SJA review determined the case sufficient in law and fact.

050412:  Memorandum, BSSG-1 Medical, 14 Area Battalion Aid Station , J. R. R_ . Subj: Separation from Active duty . Applicant examined this date and was found to be physically qualified for separation from active duty.

050419:  Commanding General, 1 ^st Force Service Support Group, directs that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.

050419:  Commanding General, 1 ^st Force Service Support Group, requests of Commanding General, Marine Corps Base, Camp Pendleton, that a permanent bar order be issued for Private First Class N_ C. R_ (Applicant).

Service Record was missing elements of the Summary of Service.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050425 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 contends that he never used drugs and admitted only to the “possibility of something being in my system that could have made me test positive I.e. medication”. There is credible evidence in the record that the Applicant used illegal drugs. The Applicant’s service was marred a nonjudicial punishment proceedings for violation of Articles 112a of the UCMJ (wrongful use of cocaine). 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 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. The Board noted that Applicant’s version of events regarding how he may have had a positive urinalysis result for cocaine offered in support of his application to the NDRB is different from, and in important aspects inconsistent with, the version of events he provided to the separation authority when attempting to rebut the recommendation for administrative separation. The NDRB advises the Applicant that certain serious offenses warrant separation from the Marine Corps in order to maintain proper order and discipline. Violation of Article 112a is considered serious offenses and a punitive discharge is authorized if adjudged at a special or general court-martial. Relief denied.

The Applicant indicates that “the main reason” for his request for a discharge upgrade is to secure medical 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 indicates that he was “pending medical discharge before all this happened…” For the Applicant’s edification, DoD disability regulations do not preclude a disciplinary separation. SECNAVINST 1850.4E 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 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 .

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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