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USMC | DRB | 2006_Marine | MD0600747
Original file (MD0600747.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD06-00747

Applicant ’s Request
The application for discharge review was received on 20060509 . 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 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 20070215 . 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.
The NDRB did note administrative error(s) on the original DD Form 214. Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS. ” The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.



PART I - ISSUES AND DOCUMENTATION


Decisional Issues
Equity: Depression caused misconduct
         Post-service conduct

 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)
Applicant ’s unofficial transcript , dated April 19, 2006 (2 pages)
Job reference from J_ A. F_, Unit Manager, Department of Military Affairs and Public Safety, Division of Juvenile Services, undated
Job reference from T_ C_, Shift Supervisor, Department of Military Affairs and Public Safety, Division of Juvenile Services, undated
 Character Reference ltr from E_ B_, dated April 25, 2005
Character Reference ltr from B_ B. S_, Security Officer, Public Safety, Glenville State College, dated April 24, 2006
 Character Reference ltr from R_ P_, State of West Virginia, Department of Public Safety, dated December 11, 2003
Character Reference ltr from E_ B_, Deputy Director of Training, State of West Virginia, Department of Public Safety, dated November 7, 2003
 Employment status ltr from R_ T_, Facility Director, State of West Virginia, Department of Military Affairs and Public Safety, Division of Juvenile Services, dated April 15, 2005
Christian Leadership Center, Academic Record, dated May 16, 2005
West Virginia Division of Juvenile Services Basic Academy Credited Hours for October 18, 2004 - November 5, 2004
Certificate of Completion, dated November 9, 2004
Life Skills Training Certificate, dated November 2004
Certificate of Completion of 5 th Basic Training Academy, October 18 - November 5, 2004
Certificate of Participation in the First Annual West Virginia Division of Juvenile Services Academy Bowl I, dated November 1, 2004
Certificate of Completion of CPR and First Aid Training valid October 28, 2004 through October 28, 2005
Certificate of Completion of Correctional Integrated Defensive System (CIDS) Lead Instructor, dated February 28, 2002
Certificate of Completion of Weapons Response Tactics (WRT) Lead Instructor, dated February 28, 2002
Certificate of Achievement, dated May 31, 2004
Certificate of Completion of Training for Trainers Course, dated June 14-16, 2004
 Certificate of Completion of Basic Communications Techniques, dated November 3-7, 2003
Fourteen pages of Applicant ’s medical records

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19980122 - 19980201       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19980202              Date of Discharge: 20010320

Length of Service (years, months, days):

 Active: 0 3 0 1 19 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 4 day s
         Confinement:              23 day s

Age at Entry: 1 9

Years Contracted: 4
Education Level: 12                                 AFQT: 33

Highest Rank: LCpl                                   MOS: 3381 (Food Service Specialist)

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 ( 6 )                                 Conduct: 3 . 1 ( 6 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Sharpshooter Badge, Navy and Marine Corps Achievement Medal, Sea Service Deployment Ribbon, Certificate of Commendation

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 :

Not dated:       Applicant receives pre-service drug waiver.
         [Extracted from CG, 1stMarDiv action, dated 010306.]

 990519:  Medical entry: 3/4 Battalion Surgeon, LT H_, MC, USNR refers Applicant to Mental Health Department, Naval Hospital, 29 Palms: 20 y.o. male reports HI but no plans. States when he becomes depressed he takes pleasure in devising ways to kill people. Does not feel he could carry this out but is concerned about having these thoughts. From broken home and had a sister who died when he was 9. Denies substance abuse. Denies suicidal ideations. Contracting for safety.
         Provisional Diagnosis: Depression with homicidal ideations.
         Adjustment disorder.
990526:  Medical evaluation at Mental Health Depar t ment, Naval Hospital, 29 Palms, by LCDR R_ R. B_, MC, USNR, Psychiatrist :
         1 st MHD (3 rd overall w/2 being when he was a child) Psych Eval for (Applicant). …depressed since his sister’s death when he was 8 y.o…morbid thoughts of how to kill people w/o getting caught for past six months…. mood swings from happy to depressed w/no warning signs or reason…thoughts not directed towards anyone in particular…has not acted out on them – does not plan to act them out…admitted to doing .the following drugs; - acid/LSD, three times when he was 15-16 y.o. – pot, fifteen to twenty times when he was 18 y.o…denied having a drinking problem…Denied suicidal/homicidal ideations, gestures or attempts. Easily contracting for safety.
         Assessment: Rule out personality disorder - considered l o w/acceptable risk regarding harm to self or others.
          Plan: 1. FFD. 2. No meds per MHD. 3. F/u in MHD in one week. 4. MMPI – 2. Pt understood and concurred.
990618:  Medical evaluation by LT A_ K_, MC, USNR, Medical Officer. Applicant previously seen by Mental Health for depressive symptoms present today at BAS after missing Company inspection. Currently UA status. Applicant states he was up until 1 am writing a biography which got him into depression. Able to fall asleep but a light sleep. Currently denies SI/HI.
         History of personality disorder
          History of suicidal ideation with out pla n s. Contracted for safety.
          AXIS I: History of personality disorder (borderline).
         AXIS II: Rule out major depression.
         AXIS III: None.
          Plan: Will attempt a trial of antidepressants.
         Prozac 20 mg in AM.
         Pt contracted for safety willingly.
         Follow up weekly for medical management.
990712:  Medical evaluation by LT A_ K_, MC, USNR, Medical Officer. 20 yo male (Applicant) seen for f/u on depressive symptoms. Pt stated he is compliant to Prozac. His energy has increased. Affect has much improved and mood seems to be brighter. Still has some disciplinary actions w/command. Will increase dosage to 40 mg and f/u in 2 wks.
991213:  Counseling: Advised of deficiencies in performance and conduct (Not being at your appointed place of duty, disobedience of a lawful order, your lack of professionalism, and severe lack of self-discipline. Specifically, you were supposed to report to the chow hall for work at 0430 on 991127. You were told by one of your peers three times to get up and report to work, to no avail. The Chief Cook, Cpl C_, had to physically come to your work rack and get you up. This was at 1000. The other two cooks from your platoon returned to see what was taking you so long to get to the chow hall. You were heard making the comment that “I’m not at the chow hall yet.”). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 991223:  NJP for violation of UCMJ, Article 86: UA 0400 to 1130 on 991203.
 Violation of UCMJ, Article 92: On or about 0230, 991125 violate BnO 11103.2 by consuming alcohol while under the legal drinking age.
          Award: Forfeiture of $260.00 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

 000217:  NJP for violation of UCMJ, Article 92 ( 4 specs):
          Specification 1: On or about 000115 violate BnO 1050.2A by failing to sign out in the Company Liberty Log prior to going on liberty.
         Specification 2: On or about 0542, 000115 violate BnO 1050.2A by consuming alcohol while being assigned to the liberty risk program.
         Specification 3: On or about 000115 violate BnO 1050.2A by going to Camp Foster while being assigned to the liberty risk program.
         Specification 4: On or about 000119 willfully disobeyed SSgt B_’s order to clean a meat slicer.
 Violation of UCMJ, Article 117 * : On or about 000115 violate BnO 1050.2A by failing to sign out on liberty with a liberty buddy.
         Award: Forfeiture of $ 563.0 0 per month for 2 month s , restriction for 6 0 days, reduction to E- 2 . Forfeiture for 1 month suspended for 6 months. Not appealed.
          [* Appears to be administrative error that should have been alleged as an additional Article 92 specification. ]
0003 1 3:  Counseling: Advised of deficiencies in performance and conduct (Constantly being late checking in from restriction and being two hours late for work on 000303 ). N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000411:  Forfeiture of pay awarded and suspended at NJP on 000217 vacated .

000525:  Summary Court-Martial.
         Charge I : violation of the UCMJ, Article 86 (3 specs):
         Specification 1 : UA/AWOL from 0330, 000331 to 0430, 000331. Finding: Guilty.
         Specification 2: UA/AWOL from 1800, 000404. Finding: Not Guilty.
         Specification 3: UA/AWOL from 2000, 000404. Finding: Guilty
         Charge II: violation of the UCMJ, Article 107:
         Specification: False official statement. Finding: Guilty.
          Sentence: Forfeiture of $ 670 .00, confinement for 30 days, reduced to E- 1.
         CA action 001101 : Sentence approved as adjudged .
00052 5 :  Applicant found qualified for confinement.
001127:  Counseling: Advised of deficiencies in performance and conduct (Improperly using your Armed Forces identification card to open your BEQ room while in Okinawa ). N ecessary corrective actions explained, sources of assistance provided.
001201:  Applicant refused rehabilitation treatment program for alcohol.

 001213:  NAVDRUGLAB, San Diego, CA , reported Applicant ’s urine sample, received 001205 , tested positive for amphetamine/methamphetamine.

001219:  Applicant seen at the Intervention and Treatment Center and refused treatment.

 010111 :  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
         Award: Forfeiture of $ 465.00 per month for 2 month s , restriction and extra duty for 45 days. Not appealed.
010117 :  Counseling: Advised of deficiencies in performance and conduct ( i llegal drug use as identified through NAVDRUGLAB msg R121415Z Dec 00 ). S ources of assistance provided, and advised being processed for administrative discharge action.
010201 :  Applicant notified of intended recommendation for discharge by reason of drug abuse and pattern of misconduct with characterization as under other than honorable conditions. Applicant informed the least favorable character of service possible was as under other than honorable conditions.

010201 :  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 and submit a written statement.

Not dated :       Applicant submits statement in response to notification of recommendation for administrative separation . Applicant comments: “Sir, my situation, with the involvement of drugs, may not be justified by my actions, but I do regret the choice I made. During this incident I was working a civilian job plus m y normal duties as a Marine in Messhall 1420. I needed the extra job because my bills were piling up and I needed to send money home to assist my family. The reason for the drugs was to be able to perform both jobs at an acceptable manner. After a few weeks the military denied me of having a second job. I was given, in a round about way, the option to quit or face a court martial. So I regretfully quit. I’m sorry for my actions and the inconvience I’ve caused. (signed) M. S. A_. ”

010209 :  Commanding Officer, Headquarters Company, 7 th Marines, r ecommended Applicant ’s discharge by reason of drug abuse and pattern of misconduct with characterization of service as under other than honorable conditions.
010201:  Commanding Officer, 7 th Marines, endorses recommendation, forwards recommending administrative separation with a characterization of service as other than honorable conditions.
010226 :  SJA review determined the case sufficient in law and fact.

 0 1 0306 :  GCMCA, Commanding General, 1 st Marine Division (Rein) , directed the Applicant 's discharge under other than honorable conditions by reason of pattern of misconduct and drug abuse. The primary basis for the separation is 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 dis charged on 20010320 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).

There is credible evidence in the record 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. The Applicant’s contention that his misconduct was the result of “uncontrollable circumstances of depression” is not supported by the record. The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his mental health issues. Further, those mental health issues do not justify the Applicant’s wrongful drug use. Finally, the Applicant’s contention is not consistent with his statement made at the time of the discharge indicating that he knowingly and purposefully used drugs in order to pursue a civilian job in addition to his Marine Corps duties. 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. Relief denied.

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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not sufficient to mitigate the conduct which precipitated the discharge. Relief denied.

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. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 31 August 2001.

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


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