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


FOR OFFICIAL USE ONLY


ex-Pvt, USMC
Docket No. MD06-00248

Applicant’s Request

The application for discharge review was received on 20051121 . 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 discharge review before the Board in the Washington, D.C. Metropolitan area . The Applicant designated Disabled American Veterans as the representative on the DD Form 293. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061005 . 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.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“ I would like to become eligible for VA benefits especially care in a VA Medical Center. I have turned my life around now and am working full time & do not use drugs and do not intend to for the rest of my life. If I am successful I getting my discharge upgraded to honorable and my reinlistment code upgraded I would really consider going back into active duty. ”

Additional issues submitted by Applicant’s counsel/representative ( Disabled American Veterans ):

“Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Under Other Than Honorable (OTH) discharge to that of Honorable.

The FSM served on active service from January 30, 2001 to December 11, 2002 at which time he was discharged due to Misconduct.

The FSM requests an upgrade of the current OTH discharge to gain eligibility to Department of Veterans Affairs Health Care. Further stating that he has mended his ways and grow in maturity since his discharge.

In continuance, there multiple letters within the file submitted in support of the FSM’s character. Also of record is a letter of explanation from the FSM as to the negative events that occurred in service.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.

Respectfully,
K_ L. G_
National Service Officer ”
Documentation

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

Applicant’s DD Form 214
Statement in Support of Claim (2 pgs)
Reference ltr from C_ D_ (mother), dtd August 13, 2005
Reference ltr from A_ D_ (grandmother), dtd August 14, 2005
Letter from Disabled American Veterans, dtd October 4, 2005
Memorandum from Disabled American Veterans, dtd September 12, 2005
Veteran Service Organization Appointment Form 21-22 (3 pgs)
Letter from J_ J. B_, Veterans Service Officer, dtd November 10, 2005

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PART II - SUMMARY OF SERVICE

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

         Inactive: USMCR (DEP)    20010122 - 20010129       COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 20010130              Date of Discharge: 20021211

Length of Service (years, months, days):

Active: 0 1 1 0 12
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 1 9

Years Contracted: 4

Education Level: 12                                 AFQT: 54

Highest Rank: LCpl                                   MOS: 0621

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: NA*                  Conduct: NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksman Badge, National Defense Service Medal

*Not Available

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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 :

010119 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

020522:  Counseling: Advised of deficiencies in performance and conduct (Use of illegal drugs (THC) as confirmed at NAVDRUGLAB SAN DIEGO, CA. Applicant in direct violation of Article 112a of the UCMJ. Wrongful use of a controlled substance, (Ecstacy). As a direct result of that violation being processed for an Administrative Separation from the United States Marine Corps. B ase driving privileges are here by revoked for a period of 12 months and Applicant required to report immediately to Bldg 901 MCAGCC Vehicle Registration Office for removal of base sticker. Upon removal of base sticker Applicant’s vehicle is to be removed from base. Applicant may not operate own vehicle or any other vehicle aboard MCCAGC nor may another individual operate Applicant’s vehicle aboard MCAGCC while the revocation is in effect. Failure to comply with these orders may result in future disciplinary action. Applicant has an appointment on 020416 at 1600 with the Bn. SACO ) . N ecessary corrective actions explained, sources of assistance provided . Applicant advised that although being processed for administrative separation still required to continue with counseling until treatment has been terminated or determined completed. D isciplinary warning issued.

020 61 1:  NJP for violation of UCMJ, Article 112a: In that LCpl D_ (Applicant),did, on or abt 020330-020402, while on active duty, at an unknown location, wrongfully use 3-4 methylenedioxymethamphetamine, a schedule I controlled substance.
         Award: Forfeiture of $619.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Not appealed.
        
Not dated :       Acknowledged understanding of eligibility but not recommended for promotion to PFC due to Under suspended admin discharge. Applicant chose not to make a statement.

020916:  Counseling: Advised of deficiencies in performance and conduct (Alcohol related incident on 20020914. SNM was with another Marine, while in a Restricted Liberty Status, consuming alcohol while being under the legal drinking age. SNM and the other Marine returned to the base, where PMO apprehended them for urinating over the cliff behind the barracks. The two were cited for underage drinking. Drinking alcohol underage in NOT an accident; it is a conscious wrongful act that is not lawful. It is Applicant’s duty as a Marine not to allow these types of actions to happen. Applicant’s action displayed a lack of dependability, loyalty, judgment, and concern for fellow Marines, and was not in keeping with Honor, Courage, Commitment, and the special trusts and confidence expected of a Marine ) . N ecessary corrective actions explained, sources of assistance provided . Applicant advised that Commanding Officer is requesting that the Under Other than Honorable discharge received for illegal drug use be vacated. D isciplinary and discharge warning issued.

021008:  Medical entry (time - 0819) : Substance Abuse Rehabilitation Department, USNH Camp Lester Okinawa, ABEC(AW) R_ M D_, USN, Substance Abuse Counselor: Applicant initial screening. Referred by command for an ARI which occurred on 16-Sep-02 for underage drinking. Applicant revealed this was first ARI. Convicted of illegal drug use (MSMA) on 11 June 2002 but not given any kind of treatment. Believes does not have a drinking problem. Goal is to learn more about alco h ol and avoid r isk y situation. SACO/DAPA file and Navy Clinical Package revea l ed perti n ent information to suggest a substance use disorder. Scheduled for a case manager appointment on 9-Oct-02 @ 0900 to determine the appropriate intensity of treatment needed. Denied current SI/HI. Denied current illicit drug use.
         AXIS I: Diagnosis or Condition Deferred on Axis 1 799.9
         AXIS II: Diagnosis Deferred on Axis II 799.9
         AXIS III: None Noted (Patient Report)
         Plan:
         1. SNM is to bring medi c al record on scheduled case management appointment.
2. SNM should maintain weekly meetings with command SACO.
3. SNM should attend two Alcoholic Anonymous meetings per week.
4. The client was assessed not to have any learning needs or barriers.
5. SNM is scheduled for a case management appointment at the Counseling Center, Camp Foster to initiate appropriate level of treatment as needed on 9 October 2002 @ 0900.

021008:  Medical entry (time - 1503): Substance Abuse Rehabilitation Department, USNH Camp Lester Okinawa, ABEC(AW) R_ M D_, USN, Substance Abuse Counselor: Appli cant amenable to attend alcohol education. R e c o mmendation: Attend Alcohol Impact educ a tion scheduled on 15-18 Oct 02 at ARD, Camp Foster.      
AXIS I: Diagnosis or Condition Deferred on Axis 1 799.9
         AXIS II: Diagnosis Deferred on Axis II 799.9
         AXIS III: None Noted (Patient Report)
         Plan:
         1. SNM is scheduled to attend Alcohol Impact Classes at the Counseling Center, Camp Foster.
2. Avoid alcohol intoxication. If underage, abstain from any alcohol consumption until the member reaches legal drinking age.
3. Any experience of uncontrolled drinking should be reported to the command SACO/DAPA for appropriate referral.
4. Involvement in any alcohol related incident (ARI) should be referred to the nearest facility with a substance abuse counselor for further evaluation.
5. The patient was assessed not to have any learning needs or barriers.

021009:  NJP for violation of UCMJ, Article 86: In that PFC D_ (Applicant), did, on or abt 2200, 14 Sep 2002, Camp Schwab, Okinawa, Japan, Bldg#3625, without authority, fail to go at the time prescribed to check in off of liberty, his appointed place of duty to wit: Liberty Risk Class “B” check in at 2200.
         Violation of UCMJ, Article 92: In that PFC D_ (Applicant), did, on or abt 2200, 14 Sep 2002, Camp Schwab, Okinawa, Japan, Bldg#3625, fail to obey MARCORBASESJAPANO 1050.3 dated 10 Aug 1998, para 8.b., by wrongfully drinking while on liberty restriction.
Violation of UCMJ, Article 92: In that PFC D_ (Applicant), did, on or abt 2200, 14 Sep 2002, Camp Schwab, Okinawa, Japan, fail to obey Regimental Order 1700.1A dated 19 Apr 2001, para 5.a., by wrongfully drinking while under the legal drinking age.
Violation of UCMJ, Article 134: In that PFC D_ (Applicant), did, on or abt 2217, 14 Sep 2002, Camp Schwab, Okinawa, Japan, Bldg#3625, having been restricted to the limits of: Liberty secured at 2200, No alcohol while in a liberty restricted status, by a person authorized to do so, break said restriction.
Award: Forfeiture of $511.00 pay per month for 2 months (Tot forf of $1,022.00), restriction and extra duty for 45 days, reduction to E-1. Not appealed.

021015:  Medical entry: Substance Abuse Rehabilitation Department, Camp Foster, GySgt R_ C G_, USMC, Substance Abuse Counselor: Applicant present for the first day of IMPACT class. Attended session one and two on this date.
         AXIS I: Diagnosis or Condition Deferred on Axis 1 799.9
         AXIS II: Diagnosis Deferred on Axis II 799.9
         AXIS III: None Noted (Patient Report)
         Plan:
         1. Return to full duty.
2. Avoid alcohol intoxication. If underage, abstain from any alcohol consumption until the member reaches legal drinking age.
3. Any experience of uncontrolled drinking should be reported to the command SACO/DAPA for appropriate referral.
4. Any involvement in any alcohol related incident (ARI) should be referred to the nearest Alcohol Treatment Facility to see a substance abuse counselor for further evaluation.
5. Further education or treatment is available as desired by the member. This can be accessed via the command SACO/DAPA or primary health care provider (sick call).

021016:  Medical entry: Substance Abuse Rehabilitation Department, Camp Foster, GySgt R_ C G_, USMC, Substance Abuse Counselor: Applicant present for the second day of IMPACT class. Attended session three and four on this date.
        AXIS I: Diagnosis or Condition Deferred on Axis 1 799.9
         AXIS II: Diagnosis Deferred on Axis II 799.9
         AXIS III: None Noted (Patient Report)
         Plan:
         1. Return to full duty.
2. Avoid alcohol intoxication. If underage, abstain from any alcohol consumption until the member reaches legal drinking age.
3. Any experience of uncontrolled drinking should be reported to the command SACO/DAPA for appropriate referral.
4. Any involvement in any alcohol related incident (ARI) should be referred to the nearest Alcohol Treatment Facility to see a substance abuse counselor for further evaluation.
5. Further education or treatment is available as desired by the member. This can be accessed via the command SACO/DAPA or primary health care provider (sick call).

021017 :  Medical entry: Substance Abuse Rehabilitation Department, Camp Foster, GySgt R_ C G_, USMC, Substance Abuse Counselor: Applicant present for the third day of IMPACT class. Attended session five and six on this date.
         AXIS I: Diagnosis or Condition Deferred on Axis 1 799.9
         AXIS II: Diagnosis Deferred on Axis II 799.9
         AXIS III: None Noted (Patient Report)
         Plan:
         1. Return to full duty.
2. Avoid alcohol intoxication. If underage, abstain from any alcohol consumption until the member reaches legal drinking age.
3. Any experience of uncontrolled drinking should be reported to the command SACO/DAPA for appropriate referral.
4. Any involvement in any alcohol related incident (ARI) should be referred to the nearest Alcohol Treatment Facility to see a substance abuse counselor for further evaluation.
5. Further education or treatment is available as desired by the member. This can be accessed via the command SACO/DAPA or primary health care provider (sick call).

021018:  Medical entry: Substance Abuse Rehabilitation Department, Camp Foster, GySgt R_ C G_, USMC, Substance Abuse Counselor: Applicant has completed recommended 20 hour Alcohol IMPACT class as of this date. Appears to have a good attitude towar ds the program and seems to have gained some insight into drinking behavior. Challenged to make an ongoing assessment of drinking habits and make changes as appropriate.
AXIS I: Diagnosis or Condition Deferred on Axis 1 799.9
         AXIS II: Diagnosis Deferred on Axis II 799.9
         AXIS III: None Noted (Patient Report)
         Plan:
         1. Return to full duty.
2. Avoid alcohol intoxication. If underage, abstain from any alcohol consumption until the member reaches legal drinking age.
3. Any experience of uncontrolled drinking should be reported to the command SACO/DAPA for appropriate referral.
4. Any involvement in any alcohol related incident (ARI) should be referred to the nearest Alcohol Treatment Facility to see a substance abuse counselor for further evaluation.
5. Further education or treatment is available as desired by the member. This can be accessed via the command SACO/DAPA or primary health care provider (sick call).

021211:  DD 214: Applicant discharged this date under other than honorable conditions by reason of misconduct

Service Record Book did not contain the Administrative Discharge package.
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 20021211 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 presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. 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. There is credible evidence in the record, and the Applicant admits, 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. In Applicant’s case, the record indicates that he was processed for administrative separation for drug abuse, but that the separation was suspended. However, the Applicant continued to engage in misconduct. The Applicant’s service was marred by 2 retention warnings, a nonrecommendation for promotion and 2 nonjudicial punishment proceedings for violations of Articles 86, 92, 112a and 134 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 92 and 112a are considered serious offenses and a punitive discharge is authorized if adjudged at 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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. 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. The Applicant submitted 2 letters of recommendation from family members as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. 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 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. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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. Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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