Search Decisions

Decision Text

USMC | DRB | 2006_Marine | MD0600473
Original file (MD0600473.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. MD06-00473

Applicant’s Request
The application for discharge review was received on 20060208 . 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 20061130 . 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 attached letter to the Board:
“Dear Sir,

Enclosed please find my Application for the Review of Discharge from the Marine Corps DD Form 293 and Statement of Support of Claim, VA Form 21-4138.

I was in 1 st Bn, 2 nd Mar, 2 nd MEB, out of Camp Lejeune, NC. I served in Iraqi Operation Freedom in which I fought in the fiercest battle on March 23, 2003 in An Nasiriyah where 14 of my fellow brothers were killed in action. History will tell how we had to gather/collect the carnage which included my best friend. It is this event that led to my chronic and severe case of PTSD. I did my very best to protect my country as stated in my attached certificate of commendation as well as receiving a good conduct medal for the period 20030822. I love my country, I was proud to serve my country. Now I ask that the country I love honor my service with an Honorable Discharge from the United States Marine Corps.

Enclosed is a copy of my medical records from the Batavia VA for my treatment for severe PTSD, letter of support for my upgrade from The Honorable B_ H_, M.C., and a letter from my Pastor, Reverend R_ M_.

If necessary I would like to have a personal hearing regarding my request.

Respectfully,
[signed] (Applicant)”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Certificate of Commendation, dtd July 23, 2003 (2 copies)
Ltr from X_ F_ M. D., dtd February 20, 2004
 Ltr from Applicant, dtd May 12, 2004 (2 pages) (2 copies)
Ltr from Reverend R_ M. M_, Pastor, dtd March 10, 2004 (2 pages)
Ltr from D_ M. C_, mother, dtd March 9, 2004 (2 pages)
Ltr from D_ M. C_, addressed to Senator S_, dtd April 9, 2004
 Ltr from Congress of the United States House of Representative, dtd February 12, 2004
Applicant’s DD Form 214 (Member 1) (2 copies)
Ltr from D. L. K_, Head, Records Sections, dtd April 30, 2004
Policy for Discharge Review (4 pages)
Correction of Military Records (Draft)
Ltr from K_ M. S_, Brigadier General, U. S. Marine Corps, Staff Judge Advocate to the Commandant of the Marine Corps, dtd May 11, 2004 (2 pages)
Replacing Military Records
VA Form 21-4138
 Ltr from J_ R_, Veterans Service Center Manager, dtd May 25, 2004 (8 pages)
 Diagnostic Impressions (2 pages)
Ltr from Congress of the United States House of Representatives, dtd January 17, 2006
Ltr from Saint John the Evangelist Parish, Reverend R_ M. M_, Pastor, dtd January 24, 2006
Memorandum from Applicant, dtd March 1, 2006
Information from the Department of Veterans Affairs, dtd September 2, 2005 (3 pages)
Ltr from The Department of Veteran Affairs, Buffalo Varo, D_ P. T_, Director, dtd January 23, 2006 (2 pages)
Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20010216 - 20011126       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20011127              Date of Discharge: 20031121

Length of Service (years, months, days):

 Active: 0 1 11 13
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 12 day s
         Confinement:              None

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 49

Highest Rank: LCpl                                   MOS: 0331

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 2 ( 5 )                                Conduct: 4 . 1 ( 5)

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, Certificate of Commendation, Rifle Qualification Badge (Expert 2d Award), Pistol Qualification Badge (Sharpshooter)


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 :

010215 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

010216:  Report of Medical History: Applicant used marijuana twice during July 2000.

010216:  Applicant granted RS level waiver for marijuana use.

 020827:  Applicant to unauthorized absence at 0701 on 020827.

020908:  Applicant from unauthorized absence at 1700 on 020908 (12 days/surrendered).

 020918 :  NJP for violation of UCMJ, Article 92:
         Specification 1: In that PFC C_ (Applicant), did, on or about 0116, 020825 fail to obey a lawful order, to wit: MCOP1700.22D, by wrongfully drinking underage.
         Specification 2: In that PFC C_, having knowledge of a lawful order issued by 2d L t L_, not to proceed on annual leave, an order which it was his duty to obey, did, on or about 020825, fail to obey the same by wrongfully proceeding on annual leave.
         Award: Forfeiture of $ 289.00 pay per month for 1 month, restriction and extra duty for 14 days. Not appealed.
030814:  NAVDRUGLAB, Jacksonville , FL, reported Applicant’s urine sample, received 030812, tested positive for THC.
030822 :  NJP for violation of UCMJ, Article 112a :
         Specification: In that L C pl C_ (Applicant), did, on or about 030707, wrongfully use THC.
          Award: Forfeiture of $ 645.00 pay per month for 2 month s , restriction and extra duty for 45 days , reduction to PFC . Not appealed.
030826:  Sub stance Abuse Report: Diagnosis : Alcohol abuse.
          Recommendations: Outpatient Treatment, Remain abstinent from use of all substances, Weekly visits with Unit SACO until treatment, Individual should be held strictly accountable for their actions, Per the references (a), individual may be processed for administrative separation for illicit substance use.

030903:  Counseling: Advised of deficiencies in performance and conduct (SNM tested positive on a recent urinalysis test for an illegal substance (THC.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.
030911:  Substance Abuse Rehabilitation Program: I understand that should I require assistance for a substance abuse problem after my discharge, I need to contact my local Veterans Administration Medical Center. I have been provided a copy of this document. Signed and dated by Applicant.
031014 :  Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of misconduct due to drug abuse. Applicant informed the least favorable character of service possible was as under other than honorable conditions.

031014 :  Applicant advised of rights and having elected not to consult, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

031014 :  Commanding Officer, 1 st Battalion, 2d Marines, recomme nded the Applicant ’s discharge with an under other than honorable conditions by reason of misconduct due to drug abuse. This recommendation is based upon the respondent’s incident of illegal drug use as identified in enclosure (6).

031111 :  SJA review determined the case sufficient in law and fact.
031113 :  Commanding General, 2d Marine Division, II Marine Expeditionary Force, directed the Applicant ’s d ischarge with 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 20031121 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 Board recognizes the Applicant’s service in support of Operation Iraqi Freedom; however, whenever a member is involved in misconduct due to drug abuse, on the first offense, commanders shall process the member for administrative separation. Characterization of service under other than honorable conditions 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 clear evidence in the service record that the Applicant used illegal drugs. Indeed, the Applicant received nonjudicial punishment (NJP) on 20030822 for violation of UCMJ Article 112a Wrongful use of controlled substance (marijuana). The Board noted that the Applicant’s misconduct was aggravated by a previous NJP on 20020918 for violation of 2 specifications of UCMJ Article 92 Failure to obey order. Evidence of such misconduct may be used to characterize a member’s discharge under other than honorable conditions. This conduct, which forms the primary basis for determining the character of service, falls well below that required for an upgrade in characterization of service. Relief not warranted.

When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to excuse the Applicant’s misconduct. The Applicant’s military records show no history, diagnosis, or treatment for posttraumatic stress disorder. Notwithstanding, the NDRB sees no connection between the Applicant’s misconduct and his stated medical condition. The Applicant’s misconduct began before his deployment to Operation Iraqi Freedom and continued after. Relief denied.

The Applicant is advised that 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 or enhancing employment and educational opportunities. Additionally, the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter or the Applicant may petition the Board for Correction of Naval Records (BCNR) to request a change to the reenlistment code. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

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 post-service accomplishments or any other evidence related to the discharge at that time. 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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


Similar Decisions

  • NAVY | DRB | 2006_Navy | ND0600439

    Original file (ND0600439.rtf) Auto-classification: Denied

    ND06-00439 Applicant’s Request The application for discharge review was received on 20060201. Neither the evidence of record, nor the documentation provided by the Applicant, demonstrate that the Applicant referred himself to treatment for illegal substance abuse. The Board found the Applicant’s summary court-martial conviction for illegal substance abuse sufficient misconduct to warrant an under other than honorable conditions characterization.

  • USMC | DRB | 2006_Marine | MD0600027

    Original file (MD0600027.rtf) Auto-classification: Denied

    Applicant informed that if she is separated with a characterization of service as under other than honorable conditions, she will be administratively reduced to pay grade E-3 upon separation.040527: Applicant acknowledged understanding of supplemental notification of separation proceedings.040713: An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that such misconduct...

  • USMC | DRB | 2005_Marine | MD0501537

    Original file (MD0501537.rtf) Auto-classification: Denied

    The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing. When I called LCpl R_ (Applicant) into my office, I read him his rights and asked him a series of questions, per the Commander’s guidance. As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.

  • USMC | DRB | 2005_Marine | MD0501420

    Original file (MD0501420.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). After I told the men in my command that I had taken the drugs. The NDRB advises that there was no impropriety in his administrative separation for misconduct due to drug abuse, despite the evidence of record showing that the Applicant’s test result came back negative for controlled substances.

  • USMC | DRB | 2006_Marine | MD0600200

    Original file (MD0600200.rtf) Auto-classification: Denied

    MD06-00200 Applicant’s Request The application for discharge review was received on 20051107. 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.

  • USMC | DRB | 2005_Marine | MD0501571

    Original file (MD0501571.rtf) Auto-classification: Denied

    From what I have been told the cocaine was self medication because of his mental condition. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board found that the Applicant’s characterization of discharge was appropriate. 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.

  • USMC | DRB | 2006_Marine | MD0600672

    Original file (MD0600672.rtf) Auto-classification: Denied

    Private First Class B_ (Applicant) has stated to HM2 H_, “That I have no desire to return to the unit and remain in the Marine Corps.” HM2 P_ had told Private First Class B_ (Applicant) the way to correct his deficiencies through his chain of command and that if he did not then a list of consequences was given to him under the references (a) and (b). Private First Class B_ (Applicant) did not show up for the May drill and was given Unexcused for those drills. It is requested that Private...

  • USMC | DRB | 2005_Marine | MD0501425

    Original file (MD0501425.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. PART I - APPLICANT’S ISSUES AND DOCUMENTATION 950224: Applicant discharged.

  • USMC | DRB | 2006_Marine | MD0600174

    Original file (MD0600174.rtf) Auto-classification: Denied

    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. 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’...

  • USMC | DRB | 2006_Marine | MD0600430

    Original file (MD0600430.rtf) Auto-classification: Denied

    There are no other record of use.9.) The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. The Applicant admitted that he used illegal drugs and was properly notified by the Commanding Officer that he was recommending the Applicant’s discharge by reason of misconduct due to drug abuse.