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USMC | DRB | 2006_Marine | MD0600219
Original file (MD0600219.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD06-00219

Applicant’s Request
The application for discharge review was received on 20051114 . 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:
“ I realize that I made a very bad decision after three years of honorable and clean record of service in the United States Marine Corps. I have no criminal record as a civilian and did have an average of 4.1 or 4.2 military evaluations prior to the mistake I made
My ultimate goal if approved for an upgrade of my DD 214, would be to re-enlist into the Marine Corps. If an Honorable Discharge is not allowable , I humbly request the character be listed as General Under Honorable and reenlistment code upgraded to at least level 3. The level of THC in the urinalysis was measured at two monograms over the legal limit. This was indeed a one-time event, and I have never used marijuana or other illicit drugs since that date. Subsequent urinalysis testing while in the USMC did affirm that fact. Since discharge I have maintained steady employment with C _ I _ , a plastics factory. I am a husband and father of two daughters. I volunteer regularly at the local University Head Start program. I realize fully that the bad choice I made affects not just me but my wife and daughters. I humbly request an opportunity to use my Marine Corps experience in a positive fashion with receipt of Honorable Discharge.”
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1 and 4)
 Certificate of Participation for M USCLE ( Men Understanding Small Children’s Learning Experiences ) , dtd October 2004
 Volunteer of the Month certificate, dtd October 2004
 Volunteer of the Month certificate, dtd November 2004
Certificate of Appreciation from SIUC Head Start, Parents Day, dtd February 14, 2005
 Driver’s License file check, dtd February 14, 2003 (2 pages)
Certificate of Completion, Outpatient T reatment, dtd September 27, 200 2

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19990831 - 19991130       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19991201              Date of Discharge: 20021230

Length of Service (years, months, days):

 Active: 0 3 0 1 00
          Inactive: None

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

Age at Entry: 1 9

Years Contracted: 4
Education Level: 1 0 GED                     AFQT: 5 0
Highest Rank: LCpl                                   MOS: 1371

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 ( 8 )                                 Conduct: 4.1 ( 8 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Letter of Appreciation , 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 :

990331 :  Pre-service waiver for drug ( 100 times marijuana use ) granted.
990812 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs .

011218:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Jan uary because of lack of leadership ability .
020131 :  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 020125 , tested positive for THC .
020301:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana.
         Award: Forfeiture of $ 619 per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 2 . Restriction suspended for 6 months. N ot appealed.

 020326:  Applicant evaluated for substance abuse at the Alcohol Treatment Facility, Naval Hospital, Camp Lejeune, as a result of a command referral. No diagnosis. Recommendations: Outpatient treatment. Individual should be held accountable for his actions. Weekly visits with Unit SACO until treatment. Per reference (a), the individual is nondeployable. Per reference (a) and (b), the individual is recommended to be processed for administrative separation due to illicit substance use.

020326:  Applicant acknowledged understanding of availability of Treatment for Substance Abuse at a VA Medical Center after discharge.

020405 :  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.

020417 :  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
020521 :  Commanding Officer, 8 th Engineer Support Battalion, 2d Force Service Support Group, U.S. Marine Corps Forces, Atlantic, Camp Lejeune, North Carolina , recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse . The factual basis for this recommendation was respondent’s use of a controlled substance, i.e. marijuana, as identified in the NavDrugLab MSG Jacksonville, FL 311746Z January 2002 . Commanding Officer’s comments: “ Private First Class F _(Applicant) has been a Marine for two years and nine months and in this Battalion for one year and eleven months. His use of illegal drugs was identified during a voluntary urinalyses conducted here at 8th Engineer Support Battalion. Private First Class F _ (Applicant) was made well aware of the Marine Corps’ policy of zero tolerance, in 1999 when he signed enclosure (12). By testing positive on a urinalysis for THC (marijuana), he has treated our policy with contempt. PFC F _(Applicant) has no desire for development or increase responsibilities. He has shown lack of initiative, motivation, and discipline. Using illegal drugs makes him unfit for duty and a risk to the safety of his fellow Marines. After examining the facts, I believe that he has not conducted himself in a manner worthy of an honorable discharge. Retention of this respondent would adversely affect the morale, discipline, and military effectiveness of this organization. ”

020522:  Counseling: Advised of deficiencies in performance and conduct ( I llegal drug involvement (marijuana usage identified through urinalysis confirmed by Navy Drug Lab JAXFL msg R311746Z Jan 02.)), necessar y corrective actions explained and sources of assistance provided.
020522:  Counseling: Statement of understanding of treatment for alcohol/substance dependence at a Veterans Administrative Medical Center (VAMC) explained to Applicant on 020326. Applicant did not request treatment in conjunction with discharge.
020624:  Applicant waived right to an administrative discharge board contingent upon the Commanding General suspending any administrative discharge.

020826:  Counseling: Advised of deficiencies in performance and conduct (Substance abuse related incident: IAW MCO P1000.10, Marine Corps Substance Abuse Program, MCO P1900.16, Marine Corps Separation and Retirement Manual and the UCMJ. Regardless of whether diagnosed as an abuser/dependent, [ Applicant remain s] responsible for actions and standards of performanc e and conduct. While a diagnosis of abuse can serve to explain substandard performance and/or conduct, it does not excuse it.), necessary corrective actions explained, sources of assistance provided. Applicant chose not to make a statement.
020826:  Counseling: Advised of deficiencies in performance and conduct ( Illegal drug involvement (marijuana usage identified through urinalysis confirmed by Navy Drug Lab JAXFL R 311746Z JAN 02).) , necessary corrective actions explained and sources of assistance provided.
020826:  Counseling: Statement of understanding of treatment for alcohol/substance dependence at a Veterans Administrative Medical Center (VAMC) explained to Applicant on 020326. Applicant did not request treatment in conjunction with discharge.

020909:  Applicant admitted to Alcohol Treatment Facility, Naval Hospital, Camp Lejeune, NC , for outpatient treatment.

020925:  Applicant discharged Substance Abuse Rehabilitation Program, Naval Hospital , Camp Lejeune, NC , having successfully completed treatment.

020927:  Treatment Summary, Substance Abuse Rehabilitation Program: Applicant discharged, minimally successful , with a poor prognosis. Applicant gained insight regarding the consequences of alcohol and drug use, however Applicant continues to present with limited coping skills to deal with stress. Continuing Care recommendations: PFC F_(Applicant) is being referred to the Community Counseling Center for further assistance with stress management. Applicant should meet monthly with unit SACO for twelve months to monitor progress.
021106:  Commander, 2d Force Service Support Group , denied Applicant’s request of 020624 and directed Applicant’s prompt processing for administrative discharge under other than honorable conditions.

021202:  Applicant waived right to an administrative discharge board.

021206 :  SJA review determined the case sufficient in law and fact.
021210 :  GCMCA, Commanding General, 2d Force Service Support Group , directed the Applicant's discharge with an under other than honorable conditions by reason of misconduct due to drug abuse.

021218:  Applicant found physically qualified for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021230 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 implies that his discharge is inequitable because the drug use was a one-time event and he tested “only two nanograms over the legal limit” The Applicant also implies his evaluations merit a different characterization of service. Despite 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. Mandatory processing for separation is required for Marines who abuse illegal drugs. An under other than honorable conditions 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 record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. The Applicant’s conduct is a violation of the special consideration extended to the Applicant at his waivered enlistment. 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 his discharge should be upgraded due to the Applicant’s post-service accomplishments. 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. The Applicant provided evidence of volunteer efforts as well as limited reports regarding 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 requests that his reenlistment code be changed. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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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