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

  ex-PFC, USMC
Docket No. MD03-01294

Applicant’s Request

The application for discharge review was received on 20030723.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to convenience of the government.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant listed a civilian as his representative on the DD Form 293.  In the acknowledgement letter, the Applicant was advised that the Board first conducts a documentary record review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040430.  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 and narrative reason 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 stated

Applicant’s issues, as stated on the application:

“1.  Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge based upon inequities and errors on the part of the United States Marine Corps

2.  The characterization of my service is improper based upon inconsistencies with my prior conduct and behavior known and observed by the Marine Corps. I was informed I failed a urine screen for substances in my system which I deny knowingly or willingly ingesting. The first inconsistency is that I had undergone many, many urine screenings in my career with zero positive results. The second inconsistency is that it was known that I aspired toward a career in law enforcement after my Marine Corps duty was fulfilled. To knowingly ingest prohibited substances fully aware of the impending mandatory urine screen and the consequences of a positive result, would be incomprehensible on my part. The officers involved blindly “rubber-stamped” my case through, without due consideration of me as an individual.

3.  My record indicates 2 NJPs for only isolated and minor offenses, and a final NJP resulting in my discharge. This record is inaccurate as the second NIP was unfairly based upon erroneous evidence and information, compounded by a glitch in Marine Corps administrative errors. It was improperly and inequitably used against me in the judgment made at the 3rd NJP when the erroneous information was applied as solid evidence of prior misconduct on my part

4.  I believe what occurred was unjust and heavy-handed. Throughout my entire career with the Marine Corp, from the first day, there was a pattern of persistent errors and inaccuracies by the administration and personnel who kept records and made decisions. These errors severely affected my personnel record and as a result unfairly added weight to the final decision of this discharge.  With this history of Marine Corps errors, inaccuracies, and just plain sloppy record-keeping in my case, it is certainly reasonable to doubt that the records in the case of my discharge would be accurate! When I requested a complete copy of my service record no evidence to justify any of the NJPs was included.

Secondary to this, the infraction of which I am accused should not be a life sentence to a second-class citizenship. In our society, having a substance such as this in one’s system or failing a urine screen is not a crime. It certainly is not a punishable offense, even for those who may have willingly and knowingly taken drugs. For the Marine Corp to do so in my case is unfair and unjust. My personal belief is that as Marines, we’re all held accountable for the choices we make and some choices have only one acceptable option. I agree that Marines who use drugs do not belong in the Marine Corps. Illegal drug use just doesn’t fit into our culture of excellence.

5.  The punishment I received was multiple and too severe. During previous disciplinary or counseling sessions I had been directed to accept what punishments are doled out without comment or complaint. I had been told “don’t make waves” and “you will earn the respect of your senior Marines”. Per this direction and training, I again followed this procedure when threatened with unfavorable discharge. But instead of being treated fairly for being compliant, I was overwhelmed with punishment. Not only was I punished one time by the reduction of my rank, but a second time with the fine of $1,200, and then a third time by restriction to quarters, and a fourth time by being forced out of the Marines without even the provision of resources for my return home. Severely ill, with a very high fever, I should have been in bed in my quarters, per doctor’s orders. Instead I was summoned to one meeting after another, forced to dress for duty, made to stand for hours, and generally treated with indifference and disregard to my illness. It seemed that everyone I met from the 1st Sergeant to the Captain to the Colonel had some type of severe punishment to inflict. This is excessive, multiple punishment for the same alleged offense, and constitutes double jeopardy, prohibited by the 5th Amendment to the U.S. Constitution (See attachment #10). (Use letter, page 8, paragraph 2, sentences 3 & 4, & paragraph 3, sentence 5. Also page 8, paragraphs 6 & 7, & page 9, paragraph 1; See Attachment #7, pages 10, 14 & 16, and Attachment #8, pages 3, 4, & 5).

The Board is reminded that, as specified in Background... below, I was isolated across the base with two other Marines and ordered to have no further contact with other members of my unit. This unjust restriction prohibited me from gaining information concerning statements from witnesses who had visited the same club, or statements in my defense regarding my attitude on not using drugs, my character or other personal statements of good service which could have been used for defense on my part. (Use letter, page 9, paragraph 1).

6.  The discharge is inequitable because my strict training forbade me to speak up in my own defense and I wrongly signed forms I should not have because I was told, “Read this and sign it!” At each stage of the process I stood at attention and was berated by the officers in charge without so much as a question of my interpretation of the situation (See letter, page 9, paragraph 5, sentence 3, and paragraph 6).

7.  My ability to serve was impaired by my youth and immaturity as I showed poor judgment in accompanying my fellow Marines to the club in L.A. where, unbeknown to me, prohibited substances were apparently being placed in drinks. An older, more mature person would have been more alert to what and how much they were drinking, and would not have been sharing and passing around drinks with others in the group. I was not aware of the dangers of drink-spiking in clubs everywhere. Today I know better (See letter, page 8, paragraph 1, sentences 4 & 5, and page 9 paragraphs 4 & 5, sentence 3; See Attachments #5, 5a, 5b, 5c, 5d, 5e, 5f, 5g).

8.  My youth and immaturity also kept me from speaking up in defense of accusations against me because of my solid indoctrination to “keep my mouth shut and do what I was told”, and because of my trust and faith in the Marine Corps to be fair and do the right thing (Use letter, page 5, paragraph 6, sentences 9 & 10, page 7, paragraph 3, page 9, paragraph 6, page 10, paragraph 1, sentences 5 & 6).

9.  My average conduct and efficiency ratings/behavior and proficiency marks were very good. 1 received certification in the School of Infantry, Marine Combat Training (2000), Assault Amphibian Crewman Course (2000), Tan Belt Martial Arts Program (2001), 3rd AAB Combat Crewchief Course (2002). 1 excelled in shooting and have always been an outstanding rifleman, ranked shooting expert twice as well as top shooter at boot camp (use letter, page 5, paragraph 6, sentence 1), was a Class 2 Combat Rescue Swimmer and consistently qualified in Surf Qual. I was never below 1st Class PFT during my Marine Corps career (See Attachments #2a - 2d, and 3e).

10.  I received awards and decorations such as the Overseas Ribbon, National Defense Ribbon, and Shellback Certificate (See Attachments #2e and 3e).

11.  My record of promotions, Private 1st Class 20000301 and Lance Corporal 20010301, showed I was generally a good service member (Use letter page 6, paragraph 4; See Attachment #2f. 1 & 2, and 3a).  I worked hard to stay in shape as required, volunteered for extra duties whenever possible, sought to obey all orders, and generally to be a good Marine (Use letter, page 6, paragraph I, sentence 2 and paragraph 2, sentences 6 & 7; & page 7, paragraph 4).

12.  I was a good Marine while in the service, and have continued to be a good citizen since discharge, returning home to my family, attending college, finding a job in the field of law enforcement, securing a very nice apartment, and generally contributing to society in a positive way (Use letter, page 10, paragraph 2; See Attachments #2g-i, 2g-2, 2h-1 & 2h-2; #3f and #6a, 6b, 6c, & 6d).

13.  My record of UA indicates only one minor offense (Use letter, page 6, paragraph 2; See Attachment #7, pages 6 & 8).

14.  Finally, is the fact that I served my country well and with pride (Use letter pg. 7, para 4, and pg. 6 para 3 & 4; See Attchmts #3b, #9a, b, & c). Perhaps I made some errors in judgment due to youthful inexperience, but none that warranted the erroneous characterization of my service.”

Additional issues submitted by Applicant’s counsel/representative (G_ T_):

15.  “The military records of D_ R_ are extremely inaccurate revealing error after error as described in his appeal.  The findings, punishments, and ultimately the discharge are based upon erroneous and damaging information, and a history of misrepresentation.”

16.  “Through threats of court martial and severe punishment, this young man was coerced into signing paperwork he neither understood or agreed with.  Because of the strong military culture of the Marine Corps in which he had been inculcated, he not only feared not signing the papers, but also trusted the officers and NCOs to be fair.”

17.  “Some of the errors noted in the overall record are (1) an attempted manipulation of a contracted MOS at MEPS center, (2) a missed promotion based on a Marine Corps error at the rifle range, (3) a misstated NJP that led to an undeserved punishment, etc., but I would particularly bring to the Board’s attention the letter from Capt. J.T. V_ dated 13 June 02.  Capt. V_ states (2nd paragraph, 3rd line), “LCpl R_ made several conscious decisions to ingest MDMA….”  This is untrue.  He further states, “…..he could have made the decision to abstain from MDMA, he failed to.”  Again, an unfounded misrepresentation.  And finally the letter states, LCpl R_ has been the subject of Company level NJP on two separate occasions regarding Article 86 and 92 (underage drinking).  Absolutely false.  This never happened.  My point is that if all these components of Mr. R_’s records are faulty, the events surrounding the inequitable discharge are faulty.  One cannot go through the record and pick and choose what to accept and what to deny.”

Documentation

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

Applicant’s DD Form 214
Statement from Applicant (10 pp.)
Letter from Applicant dated September 20, 2003 (2 pp.)
31 Pages from Applicant’s service record
36 Pages from Applicant’s medical record
Newspaper articles about Applicant
Articles and news releases related to unknowingly ingesting drugs (7 pp.)
Double jeopardy definition and discussion from the 5th Amendment to the US constitution
Letter of recommendation from K_ M_
Letter of recommendation from B_ M_
Letter of recommendation from R_ W_
Letter of recommendation from A_ H_
Letter of recommendation from J_ W_
Letter of recommendation from G_ B_
Request for military records with copy of envelope
Ethics instruction certificate
Defensive tactics instruction certification
Sinclair Community College training certificate
Basic training for full service jail personnel certificate
        Four pages of photos
        Ohio vehicle title

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		990325 - 990919	COG

Period of Service Under Review:

Date of Enlistment:  990920		Date of Discharge:  020725

Length of Service (years, months, days):

	Active:    02  10  06  (Does not exclude lost time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  10			AFQT:  71

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (7)			Conduct:  3.8 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  6

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:

990324:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

000816:	Counseled regarding deficiencies, specifically, unauthorized absence.  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

000816:	NJP for violation of UCMJ, Article 86: UA from 1800, 000804 to 1000, 000810.
Awarded forfeiture of 7 days pay, restriction and extra duties for 14 days.  Not appealed.

011003:	NJP for violation of UCMJ, Article 92 (2 Specs):
Specification 1: Wrongfully drive a POV while on base suspension.
Specification 2:  Wrongfully possessing a concealed weapon.
Awarded forfeiture of $304.00, restriction and extra duties for 14 days.  Not appealed.

011015:	Counseled regarding deficiencies, specifically, your recent NJP.  Necessary corrective actions explained.  Sources of assistance identified.  Disciplinary and administrative discharge warnings issued.

020605:	NAVDRUGLAB [San Diego, CA], reported Applicant’s urine sample, received 020531, tested positive for MDMA.

020611:	Applicant refused medical evaluation for drug abuse. 

020612:	NJP for violation of UCMJ, Article 112a: On or about 20 May 2002, wrongfully used MDMA as indicated by urinalysis.
Awarded forfeiture of $619.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC.  Not appealed.

020614:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your documented use of MDMA.

020614:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020614:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the documented use of MDMA.

020621:	SJA review determined the case sufficient in law and fact.

020627:	GCMCA [CG, 1st MARDIV (Rein)] 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 20020725 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).

Issues 1 and 12.  The Applicant’s discharge characterization accurately reflects his service to his country.  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.

Issues 2-8, 13-17.  There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The Board does not agree with the Applicant’s logic that because of previous administrative errors in his record or because he felt he was unfairly punished at a previous nonjudicial punishment that these alleged mistakes by the USMC somehow should mitigate his misconduct for illegal drug use or establish that he never used illegal drugs.  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.  The Board found no indication that he was unfairly or improperly denied his rights concerning his nonjudicial punishment for illegal drug use or for administrative separation.  Relief denied.

Issues 9-11.  There is nothing in the Applicant’s below average record of service to mitigate his misconduct for illegal drug use.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.   In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  Relief 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 31 Jan 97 until Present. 

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