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

FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD05-00237

Applicant’s Request

The application for discharge review was received on 20041117.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Florence, SC.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington National Capital Region.  The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050819.  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 and reason for 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 or from an attached document/letter to the Board:

“To Whom It May Concern:

My name is J_ R_ (Applicant).  About 3 years ago I made the biggest decision I have ever made in my life.  I joined the Marine Corps.  I made this decision while I was about to graduate the Youth Challenge Academy in west Columbia, SC.  It was a 6 month program that gave young adults a second change to succeed.  I was 18 years old when this decision was made, even though I felt younger at heart because I have never had been away from home very long and never had to make my own decision.  I wasn’t sure about my purpose in life.  All I knew was that I wanted to feel important and stay disciplined.  I just received my GED, but because I got through that program the Marine Corps accepted me.  I wasn’t as focused on my goals at the time like I am today.  I wasn’t even sure I wanted to join the service in the first place.  After I finish all my training from the Marine Corps I went to Camp Pendleton, CA for my first and so far last duty station.  Even though I was taught how to conduct myself as a Marine, I had no clue how to conduct myself as a young adult being on his own for the first time.  I wasn’t as educated as a lot of my fellow marines who went through 4 years of high school and have attended a year or two in college.  I only completed the 9th grade in high school and took the GED test, which I barely passed.  I worked for JAG, where I have to type cases such as divorce, adoptions, and paternity stipulations.  I don’t even know how I got through MOS school, because of how much I didn’t know.  So I felt out of place for my slow performance as a legal clerk.  I also felt out of place because I didn’t have any goals set in my life.  Now I dreamed about doing certain things I wanted to do in the future, but I didn’t know how I was going to start moving towards those dreams.  I was also guilty of being young and stupid, meaning I wanted to have fun any chance I got.  Drinking Alcohol became the only thing I thought was fun at the time.  I started off just drinking on the weekends and before I knew it I was doing almost every day.  I was doing it to relieve stress, which at the time I didn’t understand that my drinking created more stress.  I didn’t know too much about myself as a person at that particular time so it was easy to be stupid and drink all the time.  I believed in doing what everybody else was doing and not walking my own path in life.  My decision to party all the time made me a lot worse in my work performance as a Marine and a Legal Clerk.  It turned my world upside down, even though I thought it was my solution in life.  I finally realized I had a problem with alcohol.  I was sent to an impatient center on base in May of 2003.  I went through 30 days of treatment at this rehabilitation center.  Going through treatment there helped me learn a little bit about myself.  The only problem was that I still didn’t have the desire to stay consistent in life.  Little did I know I would need fall a lot harder to develope that particular desire that I have today.  Two months after I got out of rehab I was introduce to a drug called Crystal Meth. I learned that is was a common drug to do.  I was introduced by another marine that lived in my barracks.  Know at that time I had never tried an illegal drug that strong, so my curiosity did get the best of me once I heard about what it can do.  The only other illegal drug I had ever tried was marijuana, but only a couple of times.  I thought I could just try this drug, satisfy my curiosity and be done with it.  That plan turned into an instant addiction as soon as I tried it.  One night I consumed too much and got myself caught, which I’m glad that happened only for the reason that it got me to stop.  This happened in august of 2003.  I knew once that I got caught my career as a Marine were over.  It was a night mare that lasted 8 months and in a way that night mare still takes place.  Two months after I was charged I was sentenced to restriction to the barracks and half my pay was taking away.  Being restricted to my room gave me more time than I needed to think about what I did.  Also, having my pay taking away, which messed up my credit a lot and cause me to lose a lot.  If that wasn’t bad enough my Battalion Commander recommended my separation from the Marine Corps.  Now getting charged for using illegal drugs was first and last thing I ever got in trouble for.  Not every marine gets kicked out for it either, but I did.  I put in about 3 years of my life for them, you think they give me another chance.  It hurt me a lot to know that I didn’t mean anything to my higher ups.  They made me wait 8 months until they separated me.  I was then forced to go back home to Florence, SC were the economy is at the lowest and there is no opportunity to make anything out of yourself.  It still haunts me to this day, and the way I see it if nothing changes it always will.  I don’t want to live the rest of my life and die as the guy who got kicked out the Marine Corps.  There is nothing I wouldn’t do to be given the chance to finish what I started.  I’m currently going to a technical college.  Going there has brought some change to me.  I want to continue going but I don’t know how long that’s going to last.  Pretty soon most of my school tuition going to have to come out of my pocket, and I won’t be able to afford it.  If I was given another chance to serve my country I would do more than redeem myself.  I would continue school for starters.  I would also try to help people who are in the mind frame I was in a year or so ago.  That person I was grew up and has better things to do now than drugs and alcohol.  Whosoever is reading this letter I hope that see how honest and hungry I am for another chance.  I really would like one more chance to be a United States Marine.  I ask that whoever is reading this letter helps me get that second chance.  I will be more than willing to appear at a hearing for my request.  This is the reason I’m asking for my discharge and RE code to be changed.

Sincerely,

J_ R_ (Applicant)”

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)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20011017 - 20011029		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20011130		Date of Discharge:  20040120

Length of Service (years, months, days):

Active:    02  02  21
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  9 (GED)			AFQT:  59

Highest Rank:  LCpl				MOS:  4421

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):  National Defense Service Medal, Rifle Marksmanship Badge, Pistol Marksmanship Badge

*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:

010525:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

030505:	Consultation Report: Impression: Alcohol dependence.

030509	Counseling:  Advised of deficiencies in performance and conduct (Lack of responsibility, specifically since joining HqSptBn on 020615 Applicant lost meal card on three separate occasions, this being a total lack of responsibility and judgment on Applicant’s part.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030512:	Medical evaluation by Director, Consolidated Substance Abuse Counseling Center:
	AXIS I:  Alcohol dependent.
	Plan:  Applicant should attend Residential Treatment at Substance Abuse Rehabilitation Program Department (SARPD) unit SACO should contact Dr. R_ to schedule bed date.

030523:	Applicant directed to report to the Naval Hospital, Camp Pendleton for Naval Addictions and Rehabilitation and Education Department (NARED) counseling for 28 days on 0800, 030526.  Applicant acknowledged receiving these orders.

030527:	Substance Abuse Rehabilitation Program Department:  Applicant was entered into partial hospitalization with a diagnosis of alcohol dependence.

030617:	Applicant completed residential treatment. Discharge diagnosis: (1) Alcohol dependent.  (2) Nicotine dependent.  (3) Adult child of an alcoholic.  Applicant placed on formal one year recovery program.

030906:	Emergency Care and Treatment, NH Camp Pendleton, CA: Chief complaint: drug use.  Pt. using drugs – paranoid and hearing voices, Pt. recently using crystal meth and crank.  Pt. calm and cooperative.  Assessment: Drug abuse (methamphetamine).

030917:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 030910, tested positive for methamphetamine.

030917:	Screening Addendum Note: Applicant was diagnosis alcohol dependent on 030512 and was subsequently sent to residential treatment and completed on 17 June 2003.  The Applicant is a command referral for being paranoid, hearing voices and admitted to smoking a bowl of methamphetamines and crank on 6 September 2003.  The Applicant was asked had he seen or wanted to see a lawyer and became confused as to why and was not able to understand the seriousness of the incident.  At this time the interview was halted and command was contacted.  Recommendation: Reschedule screening CSACC after seeking legal assistance.

030918:	Applicant referred to CPNH outpatient mental health due to complaints of anxiety-paranoid feelings, paranoid thoughts.  Diagnosis: Alcohol dependence r/o poly substance abuse.

031120:	NJP for violation of UCMJ, Article 112a:  Wrongful use, possession, etc. of a controlled substance.
	Specification:  In that LCpl R_ A. did test positive from a urinalysis conducted on 10 September 2003 for methamphetamine use with nanogram level of 1385.  The maximum count is 500.
	Award:  Forfeiture of $645 per month for 2 months, restriction and extra duty for 45 days, reduction to PFC/E-2.  Not appealed.

031203:	Applicant signed VA treatment location statement.

031215:	Substance Abuse Counselor: Applicant refused medical officer evaluation.  Recommendation: MOE/MDAC/Administrative Separation.

031216:	Counseling:  Advised of deficiencies in performance and conduct (Alcohol rehabilitation failure.  Specifically, Applicant wasn’t supposed to consume any alcohol during the 12 month aftercare program.  During this period Applicant drank and used methamphetamine which resulted in aftercare program failure.), necessary corrective actions explained, sources of assistance provided.

031216:	Counseling:  Advised of deficiencies in performance and conduct (Applicant’s illegal drug involvement - methamphetamine usage on 10Sep03, as identified through urinalysis, and confirmed by NavDrugLab San Diego msg # 5350-4 R172143Z Sep03.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

031230:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of alcohol rehabilitation failure and by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the Medical Officers Evaluation of 15 Dec 03, report of urine sample test OPNAV Report 5350-3 R172143Z Sep 03 ZYB PSN 086134S22.

031230:	Applicant advised of rights and having consulted with counsel, elected to waive all rights.

031230:	Commanding Officer, Headquarters and Support Battalion, Marine Corps Base, Camp Pendleton, CA recommended Applicant’s discharge with an under other than honorable conditions due to alcohol rehabilitation failure and by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the report of urine sample test as evidence by enclosure (6) [OPNAV Report 5340-4 R172143Z SEP 03 ZYB PSN 086134S22] and the Medical Officers Evaluation of 15 Dec 03 as evidence by enclosure (7) [Screening note of 15 Dec 03].  Commanding Officer’s comments:  “Lance Corporal R_ (Applicant0 has shown a blatant disregard for the rules and regulations of the Uniform Code of Military Justice and has demonstrated that he lacks the requisite moral character to succeed as a U. S. Marine.  Retention of this Marine would be a burden to this unit and detrimental to the good order and discipline of this command.”

031231:	SJA review determined the case sufficient in law and fact.

040108:	GCMCA, Commanding General, Marine Corps Base, Camp Pendleton, directed the Applicant's discharge with an 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 20040120 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 available 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 presumed regularity in the conduct of governmental affairs (D).

Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  There is credible evidence in the record that the Applicant used illegal drugs.  The Applicant tested positive on a urinalysis for methamphetamine.  The Applicant was awarded nonjudicial punishment (NJP) for a violation of UCMJ Article 112a, wrongful drug use.  The evidence of record shows that the Applicant was also diagnosed as alcohol dependent.  The Applicant implies that his discharge was inequitable because other service members similarly situated were retained in the Naval service.  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps.  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.  As such, relief is 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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  Relief denied.

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.  

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 other evidence related to 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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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