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

ex-Pvt, USMC
Docket No. MD02-00346

Applicant’s Request

The application for discharge review, received 020129, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, 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 020912.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. Dear Sir, My name is (applicant) and I am currently a student attending the University of Massachusetts at Amherst. From the year 1995 until the end of the year 1996 I served as a Marine in Okinawa, Japan and in Kaneohe Bay, HI.  Serving with the 2d Battalion, 3rd Marine Division as an 0351 assault man.  I was a hard charger and had done extremely well in both Boot Camp (Parris Island, SC) and the School Of Infantry (Camp Geiger, NC) scoring high on both physical fitness and weapons training tests.  After training I was sent to the Fleet Marine Force in Kaneohe Bay, H.I. and put into Fox Company's weapons platoon under the authority of Staff Sergeant M_.

    One day in early October of 1995 a few months after arriving at my duty station I was choked by my Staff Sergeant after a PT run.  I had had a sprained ankle at the time and therefore had trouble keeping in the formation with the rest of the platoon that day.  My Staff Sergeant starting yelling at me and then grabbed my throat and began choking me.  Now being a Marine I was used to being treated with firmness by hard Marines, but this time it was different, this man had rage.  I tried to get his hands off my neck but he was a much larger more powerful man.  The next thing I new I woke up on the ground dizzy and confused as to what had just happened.  I then realized the Staff Sergeant had choked me to the point of incapacitation.  He continued to yell and threatened to do worse to me next time saying that I was weak.  There would be no "next time" for me I thought to myself.  Scared for my safety and afraid to tell the higher authorities, I went UA. Before leaving however, I mailed a letter to my Company Commander (Captain C_, Fox Company 2/3) explaining what had happened and why I had left.    Having spent 4 years of high school in New York Military Academy in Cornwall New York, graduating as a Cadet Company Commander I was not used to running away from things.  But I weighed only 125 pounds at the time and this Staff Sergeant weighed over 200 pounds and was not afraid to use it.  Because of my love for my Country and my Corps I returned to Hawaii after 2 months hoping the Staff Sergeant had already been disciplined and would not be able to harm me anymore.  But when I returned I found that my Company Commander had not disciplined the Staff Sergeant at all and the Staff Sergeant was still in charge of the same Platoon.  I was moved into the Company Office to do clerks work under the Captain's supervision.  I asked the Captain if he had received my letter and he acknowledged that he had and not to worry about that incident anymore.  I tried to explain to him that I was afraid for my safety and that the Staff Sergeant should at least be reprimanded.  The Captain again said "don't worry about it" and stated that I would work for him from now on.  The next day he informed me that I was to report to Base Medical for a psychological evaluation.  I realized right away his rationale behind it, by ordering a psychological evaluation he immediately ruined my integrity with anyone in my chain (in case I decided to charge the Staff Sergeant with assault and went up the chain of command, which I had planned on doing).

    The Psychological Evaluation was performed and it stated that I had a "personality disorder" whatever that was.  As the Captain had wanted it called for my discharge from the Marine Corps.  For the next 7 months I worked in the Company office as a clerk under the Captain's watchful eye and away from my Staff Sergeant.  I worked and waited while the paperwork ran it's usual slow course of formalities.  I was told everyday that I was being discharged for being "crazy" by the Captain and the Lieutenants would often laugh and make fun of it.  Finally after 7 long months of waiting, my paperwork came back and said the whole thing had been dropped by the Base General for "lack of legitimate evidence." This was very peculiar and It felt good to know that the Corps would still function honestly even though there are always a few people who would try and manipulate the system to suit their own needs.

    It was at this point I feel that a complete injustice took place within the ranks.  Within only a few weeks of being put back into my normal weapons platoon and not being called "crazy" anymore I was notified that I had been found to have marijuana in my urine.  This was absurd; I couldn't believe that the Captain would go this far still persistent in trying to get me out of the Marine Corps with a "bad" discharge.  I told the Battalion Commander that the test was wrong and to please retest me but he denied my request, he notified me that I was being discharged, under an OTH discharge.  I tried to explain myself but nobody would listen, after all I was only a PFC.  It was at this point I gave up for along time on trying to prove my case.  Of being assaulted by an NCO and then marked by my Company Commander who was trying to cover up an "incident" that would look bad for his Company.

    After returning home from the Marine Corps I was accepted to the University of Massachusetts at Amherst where I have been at the top of my class for the last four years.  I am currently in my last semester and have only admiration and respect for the Marine Corps for it has given me the self discipline, courage and persistence to make it through school on my own.  It hurts my pride however, when I think back on the incidents that happened while I was stationed in 2/3 and the discharge that I wrongfully received.  I do not blame the Marine Corps however, for the wrongful actions of a few.  I hope that the board understands my need to resolve this issue that has weighed so heavy on my mind for the past 5 years.  It is not my intent to still file suit against the Staff Sergeant who assaulted me or to try and degrade my former Company Commander for suppressing information.  I hope only to receive my Honorable Discharge so that I may live with myself and feel some sense of pride in my life and so when I look at my tattoo on my right arm that says "ONCE A MARINE ALWAYS A MARINE" a statement I will live by for the rest of my life.

    Aside from the request for an upgrade to Honorable Discharge I would also request that the Board would upgrade my reenlistment code so that in the future I may be of some service to my Corps and Country if needed or called upon.

    I thank you for your time and consideration in my case and I hope that I will be granted the opportunity to appear in person in front of the Naval Board of Discharge Review located in Washington, D.C., in order to further explain the details regarding my case.  Sincerely,

Documentation

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

Copy of DD Form 149
Copy of DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		950114 - 950124	COG

Period of Service Under Review:

Date of Enlistment:  950125		Date of Discharge:  961120

Length of Service (years, months, days):

	Active:    01  09  26
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  67

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.4 (7)			Conduct:  3.0 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  61

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:

950110:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

950111:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver granted.

960124:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 0530, 30 Oct 95 until 0530, 30 Dec 95 (61 days/surrendered).
Awarded forfeiture of $450.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

960321:	Psychiatric Evaluation: Diagnosis: Axis I: Adjustment disorder with MEF, severe occupational problem. Axis II: Personality disorder, NOS with schizoid, narcissistic, immature features.

960409:	Counseled for deficiencies in performance and conduct.  On 21 March 1996, applicant was seen by Capt A_ N_ L_ and diagnosed with an adjustment disorder, severe occupational problems and a personality disorder with schizoid, narcissistic, immature features.  Within the present enlistment, he received one NJP punishment for unauthorized absence.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960429:	Counseled for deficiencies in performance and conduct.  On 22 April 1996, applicant was seen by Capt A_ N_ L_, MC, USN, psychiatrist, for a follow-up assessment and evinced no appreciable changes in attitude, beliefs and coping skills.  He continues to experience feelings of anger, irritability and emotional liability.  He has been diagnosed with an adjustment disorder, severe occupational problems and a personality disorder with schizoid, narcissistic, immature, features.  As a result of his follow-up psychiatric evaluation, noting he has not overcome his deficiencies noted in counseling entry dated 960409 and one (1) NJP, he is being processed for administrative separation.

960916:	Counseled for deficiencies in performance and conduct.  On 5 September 1996, he was seen by Lt. A_ A_ A_, MSC, USNR, psychiatrist, for a follow-up assessment and found to have a personality disorder of such severity that it renders him incapable of serving adequately in the military.  He continues to experience feelings of anger, irritability and emotional liability.  As a result of his follow-up psychiatric evaluation, noting he has not overcome his deficiencies noted in counseling entry dated 960409 and 960429, and one (1) NJP, he is being processed for administrative separation.

960930:	NAVDRUGLAB, San Diego, CA, reported applicant’s urine sample, received 960919, tested positive for Tetrahydrocannabinol.

961008:	NJP for violation of UCMJ, Article 112a:
Specification: Wrongfully used marijuana between 16 Aug 96 and 16 Sep 96.
Awarded forfeiture of $400.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt.  Not appealed.

961016:	Counseled for deficiencies in performance and conduct.  Pattern of misconduct due to drug abuse.  On 8 October 1996, applicant received NJP for wrongful use of marijuana.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961028:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

961028:	Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

961028:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was wrongful use of marijuana. 

961104:	SJA review determined the case sufficient in law and fact.

961105:	GCMCA [Commanding General, Marine Corps Base, Hawaii] directed the applicant's discharge 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 961120 under other than honorable conditions for misconduct due to drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1.  The Board’s charter limits its review to a determination on the propriety and equity of the discharge.  There is credible evidence in the record that the applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  While he may feel that he was treated unfairly by his chain of command, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice is evident during the applicant’s enlistment.  Additionally, 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.  Relief not warranted.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

The applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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 18 Aug 95 to 30 Jan 97. 

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023