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USMC | DRB | 2006_Marine | MD0600325
Original file (MD0600325.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. MD06-00325

Applicant’s Request
The application for discharge review was received on 20051213 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable . The Applicant requests a documenta ry record discharge review. The Applicant designated Disabled American Veterans as the representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20061102 . After a thorough review of the available 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:
“ After my tour of Duty in Iraq. I was experiencing psychological difficulty adjusting so I was
 I am requesting an upgrade in my discharge so I can receive medical treatment from the V.A. for service incurred injury. After my Tour of Duty in Iraq , I was experiencing psychological difficulty adjusting so I was self medicating to relieve the pressure of my traumas since I had not received any counseling for my experiences.
[signed] A_ (Applicant)”
Additional issues submitted by Applicant’s representative, Disabled American Veterans:
“The petitioner requests the characterization of service received at the time of discharge be changed to Honorable. The Applicant states that after his tour of duty in Iraq, he was experiencing severe psychological difficulties and self medicated himself with drugs to numb his mental pain. He states he never received any counseling for traumas he experienced while in Iraq.
Therefore, we request that the Board consider the extenuating and mitigating circumstances in this case, and grant the benefits sought to the Applicant. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4) (Member 1)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20000613 - 20001011      COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20001012                       Date of Discharge: 20040210

Length of Service (years, months, days):

 Active: 0 3 0 3 29
         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: 46

 Highest Rank: Cpl                                    MOS: 3531

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): Presidential Unit Citation, Combat Action Ribbon, Sea Service Deployment Ribbon, National Defense Service Medal, Rifle Expert Badge (2 nd Award)

*Not Available


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 :

001011 :  Pre-service DDE (RS-Level Serious Offense) and FBE (RS-Level Marijuana Usage) waivers granted.

010730:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order.
          Specification: I n that LCpl J_ (Applicant) , did on or about 0530 on 010722, having knowledge of a lawful general order issued by MajGen H_, fail to obey the same by wrongfully consuming alcohol while under the age of 21.
 Violation of UCMJ, Article 107: False Official statements.
 Specification: In that LCpl J_, (Applicant) , did, on or about 0530 on 010722, wrongfully make a false official statement.
Violation of UCMJ, Article 134: General Article.
Specification: In that LCpl J_, (Applicant) , was, on or about 0530 on 010722, drunk and disorderly.
         Award: Forfeiture of $ 283.00 pay per month for 1 month, restriction and extra duty for 14 days. Not appealed.
010731:  Counseling: Advised of deficiencies in performance and conduct (Commanding Officer’s NJ P for violations of Article 107, intent to deceive the Border Shore Patrol by making a false official statement.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020717:  Counseling: Advised of deficiencies in performance and conduct ( V iolated Base order P5000.2J by operating a POV aboard Camp Pendleton without proof of insurance and no driver’s license.), necessar y corrective actions explained and sources of assistance provided.
021219:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month s of Jan, Feb, Mar, because of lack of leadership. Applicant chose not to make a statement.

031014:  NAVDRUGLAB Camp Pendleton, CA, reported Applicant’s urine sample, received 031008 tested positive for MDMA.
031103 :  NJP for violation of UCMJ, Article 112a :
Specification: In that Cpl J_ (Applicant), did , at Camp Pendleton, CA., test positive for MDMA at a level of 1906 NG/ML as reported by the Naval Drug Lab DTGR 142005Z Oct 03.
         Award: Forfeiture of $ 678.00 pay per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 3 . Not appealed.
031114:  Applicant refused medical officer’s substance abuse evaluation . Applicant advised to contact VA Alcohol and Drug Treatment Facility closest to home of record.

031124:  Applicant found physically qualified for separation.
031205:  Counseling: Advised of deficiencies in performance and conduct (Concerning illegal drug related involvement on 3 November 2003, specifically MDMA usage identified through urinalysis confirmed by NAVDRGLAB MSG 142005Z Oct 03.), necessary corrective actions explained, sources of assistance provided, and advised being recommended for administrative discharge action.
031216 :  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to illegal drug abuse. The factual basis for this recommendation was the positive urinalysis DTG 181552Z Sep 2003. Applicant informed the least favorable character of service possible was as under other than honorable conditions.

031 2 16 :  Applicant advised of rights and having elected not to consult with coun sel, elected to submit a statement to the Separation Authority.

031216 :  Commanding Officer, Headquarters Battalion, 1 st Marine Division, recommended that the Applicant be discharge d under other than honorable conditions by reason of misconduct due to illegal drug abuse. Commanding Officer’s comments: “ I have personally interviewed Lance Corporal J_ (Applicant) and find that he is not the type o f individual we want in the Marine Corps. His positive urinalysis demonstrates that he does not possess the discipline and good judgment needed of a United States Marines. His willful violations of our core values and Uniform Code of Military Justice is destructive to the discipline and morale of the organization. More importantly, Lance Corporal J_ (Applicant)’s actions represent a negative influence on his fellow Marines. Lance Corporal J_ (Applicant) has been the subject of one company-level NJP for violations of Articles 92, 107, and 134. His documented incidents of misconduct represent a signi ficant departure from the conduct expected of all Marines. Due to his unsatisfactory conduct and the positive results of his urinalysis test, I recommended that Lance Corporal J_ (Applicant) be discharged with a characterization of service as under other than honorable conditions. ”

040105:  SJA review determined the case sufficient in law and fact.
040113 :  Commanding General, 1 st Marine Division, direct ed the Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040210 by reason of misconduct due to drug abuse (A and B ) with a service characterization of under other than honorable conditions . After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable ( C and D ). The Board presumed regularity in the conduct of governmental affairs ( E ).

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 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 a retention warning and two nonjudicial punishment proceedings for violations of Articles 92, 107, 112a and 134 of the UCMJ. The Applicant’s violations of Articles 92, 107 and 112a are serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at 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 and his representative imply that the Applicant’s discharge is inequitable because the Applicant’s discharge was based on the Applicant “self-medicating” to cope with psychological difficulties. While the Applicant may feel that his psychological condition was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Applicant and his representative request that the Applicant’s discharge be changed in order for the Applicant to receive 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. Relief on this basis is not appropriate.

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 92, disobey lawful order, Article 107, false official statement 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 .

E . 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 .

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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