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

FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD05-01043

Applicant’s Request

The application for discharge review was received on 20050601.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or 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 20051027.  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 the application and from an attached document/letter to the Board:

“My request is for an honorable discharge, however if the review board doesn’t determine my appeal to warrant an honorable, I would accept a general/under honorable conditions.  My appeal is based on a series of incidents which I feel contributed to my dismissal from the Corp which contain some inconsistencies and a number of omissions from my OMPF which I have copies of.  I will include in my appeal a chronological listing of these incidents and four supporting documents listed in section 8.  The first incident is an Administrative Remarks form contained in my OMPF dated 2001/07/05 stating that I failed to report at the assigned time (0700) for sign in.  I protested this allegation and had (have) my Disciplinary Restriction Muster Record (copy included) to verify my position that I was, in fact, at the appointed place at the prescribed time.  The Bn OOD would not relent and First Sergeant H_ insisted that I sign the form.

The following incident covered several months.  My prescription glasses were broken on a field op while in Okinawa.  I got by on old contacts until we returned to Camp Lejeune.  I ordered new glasses upon our return and after being told they hadn’t arrived several weeks in a row I discussed it with my Platoon Commander and Platoon Sergeant.  They had individually stated that it would be checked into.  After several more attempts with negative results I mentioned it to my father.  I was scheduled for weapons qualification and without glasses or good contacts I only qualified as marksman after previously qualifying (twice) as expert.  I even tried some fellow Marines’ glasses to see if they were close to my prescription, but none were.  My father, without my knowledge, sent a letter to Senator Strom Thurmond requesting assistance.  The next thing I knew I was called in by the CO and informed that an inquiry was being conducted because of my fathers’ letter.  First Sergeant H_ approached me, in the presence of my gun crew, and asked how long I had been trying to get glasses.  I explained that it had been about two months.  He asked if I had bothered to seek help.  I told him I had talked to my Platoon Sergeant and Platoon Commander and had checked with BAS on a weekly basis.  He then accused me of not being able to handle my own affairs and running home to daddy like a baby and then not controlling his (my fathers’) actions.  I told him I had requested, when he first mentioned the letter, not to send it.  I also informed First Sergeant H_ that my father, as an army Viet Nam veteran, had certain expectations of the military and those were not being met, and you just didn’t order him around.  (My father later informed me that it was not his intent to cause a full inquiry but to light a fire and get my glasses issued.)

In October we were on a field op at Ft. Bragg, NC and in December I received a Meritorious Mast from the BN Commander.  A copy is included since it was not in my OMPF.

During the period of May through September I was serving as a beach lifeguard at Camp Lejeune.  On August 6, 2002 I was accused of stealing two packs of cigarettes from the exchange annex.  I had entered, used the ATM and then picked up the two packs and placed them in my pants pocket as I walked to the cooler knowing I would need both hands to open the door and pick up my purchases and carry them to the checkout.  I had done this numerous times before.  I then proceeded to the checkout, paid for my purchases, and walked out the door.  Someone said “Hey” and I turned and said “Hey yourself”.  He was store security and asked to see my receipt which I handed to him.  He asked if I had paid for everything and that is when I remembered the cigarettes.  I pulled them from my pocket and told him I had forgotten them and started back in to pay for them.  He refused to allow me to pay and directed me to follow him.  I showed him my ATM receipt where I had withdrawn $40. for my purchases and was going to Subway for a sandwich.  The receipt also showed a balance of $1200.  I asked him, Why would I, in plain view of the security camera and other people in the store and with plenty of money attempt to steal cigarettes? He took me to the backroom and called the MP’s.  They came and took me to the MP station, took my statement, and released me.  I accepted the NJP feeling that I would be vindicated following the hearing and with character witnesses (8) that would vouch for my honesty.  I was somewhat vindicated in that the CO really didn’t know me and I did, in fact, have the cigarettes in my pocket.  The judgment of forfeiture of pay was suspended.

The substance abuse NJP was the result of a screening prior to our deployment to Okinawa in December 2002.  First Sergeant H_ informed me of the positive test and then asked if it had happened in the unit.  Without thinking, I responded “no” and that I wanted to talk with a lawyer.  He said that was fine but that my response to his question would be viewed as an admission of guilt and if called upon he would testify to that effect.  I accepted the NJP and was reduced and placed on restriction and extra duty.  Following an interview on 18 December 2002 the following was reported “SNM does not reveal any patterns of drug abuse or dependence.  Therefore, SNM does not need treatment for drug abuse.”

I accompanied the unit to Camp Fuji and assumed my duties as Ammo Team Chief for my gun crew.  This entailed constant contact with all the components of artillery fire missions.  While at Camp Fuji I also accompanied a group of fellow marines to visit a local orphanage.  We were there interacting with the children and staff for most of the day.  There were 40-50 in the group.  It was voluntary but had to be approved by command.  After returning to Okinawa I was consistently used as a PMI until April prior to my Admin Sep Hearing.  I was also given the assignment of personal trainer for PFC B_ to bring him up to Marine Corp standards in physical fitness.  These duties are in direct conflict to the sworn testimony by First Sergeant H_ and First Lieutenant E_ at the hearing where they stated that (First Sergeant H_) “I don’t think PFC T_ (Applicant) can be trusted due to drug use.” (1Lt E_) “I think he’s done a good job in the Marine Corp up until the positive drug urinalysis.  I don’t think he can be trusted after the fact.”

In part, Staff Sergeant T_’s sworn testimony, “I think that the Marine Corp is not consistent in keeping Marines and separating Marines based on acts.  I think this Marine should be retained.”

I know personally of a number of Marines who had positive drug tests and were not only retained but went on to become NCO’s.  Corporal L_ J_ and Lance Corporal A_ are two of a number that I remember by name from Sierra Battery while I was there.

In addition to the aforementioned items not included in my OMPF, I offer the following.  During my first deployment to Okinawa and after our return from Camp Fuji I attended class and was awarded the secondary MOS of 8531 - PMI from the Camp Hansen Coaches School, MCB Camp Butler, Okinawa, Japan. (copy of card included).  I also achieved the level of Water Survival Qualified, the highest level below Swim Instructor.  This was while the rest of the battery was basically ‘marking time’ until we departed for Camp Lejeune.  During the spring of 2002 I earned the additional MOS of Lifeguard granted by MCCS, Camp Lejeune. (copy of card included).

I continue to maintain that I am proud to have served in the USMC and in service to my country.  In closing I am well aware that my record is far from spotless; I am also aware that my accomplishments far exceed those of most Marines.  I feel that with over 3-1/2 years of good service that I earned better than I received.  Thank you for your consideration of my appeal.

Semper Fi,
[signed]
W_ L.  T_ (Applicant)

I recognize the following can have no bearing on your decision but I would like for you to know that I have moved forward in a positive way since my discharge.  I entered Midlands Technical College, Columbia, SC in the fall of 2003 earning 30 credit hours over the next year with a 3.26 GPA.  I transferred to Lenoir~Rhyne College in Hickory, NC in the fall of 2004 in the BS program of Health and Exercise Science.  In the two semesters at LRC I’ve earned 32 credit hours with an overall GPA of 3.725 and have been on the ‘Dean’s List’ both semesters.”

Documentation

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

Disciplinary Restriction Muster Record, dtd June 6, 2001 (2 pages)
Meritorious Mast certificate, dtd December 12, 2001
Copy of course completion certificate, range coach and PMI
Copy of American Red Cross lifeguard certificate card, dtd May 2, 2002
Applicant’s DD Form 214
Midlands Technical College online transcript, undated
Lenoir Rhyne grade reports, dtd December 20, 2004 and May 10, 2005
Dean’s list announcement for Fall 2004 and Spring 2005 (4 pages)
Certificate of completion for Aerobic Fitness Instructor Training Program, dtd July 15, 2004
Certificate of completion for Strength and Sculpt Apprenticeship Training Program, dtd June 29, 2004
American Council on Exercise (ACE) continuing education validation form, dtd July 31, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19990319 - 19990926	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990927		Date of Discharge:  20030717

Length of Service (years, months, days):

Active:    03  09  21
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  22

Years Contracted:  4

Education Level:  13				AFQT:  93

Highest Rank:  LCpl				MOS:  0811

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (12)				Conduct:  4.0 (12)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon, Rifle Marksman

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:

990318:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

990319:	Pre-service waivers for minor traffic offenses, serious offense(s) and weight granted.

010606:	NJP for violation of UCMJ, Article 92:
	Specification: Willfully disobeyed lawful order (MARCOBASESJAPANO 1050.3 and 1050.3a) by failing to sign out on liberty with the DNCO and BN SDO on or about 2100, and not returning prior to the prescribed time for a LCpl (0200), on or about 0205, 20 May 01, Camp Hansen, Okinawa, Japan.
	Award:  Forfeiture of $584 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

010712:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of Aug 2001 because of BN NJP.  Applicant chose not to make a statement.

010713:	Counseling:  Advised of deficiencies in performance and conduct (Failure to obey orders and regulations and dereliction of duty.  On 010529 the Applicant was the subject of a Battalion level NJP.  As part of his punishment he was placed on Battalion Restriction, requiring check-in with the Battalion OOD at prescribed times.  On 010705 the Applicant failed to report to the OOD for the 0700 sign-in.  This is evidenced by the OOD’s statement and an official log book entry.  The Applicant had a duty to be at an appointed place at a prescribed time.  This was a lawful order given by the Battalion Commander, which he blatantly violated.  Such insubordinate conduct will not be tolerated), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020820:	NJP for violation of UCMJ, Article 121:
	Specification: Did, at the Marine Corps Exchange Annex, Camp Lejeune, on or about 6 Aug 02, wrongfully steal two packs of Marlboro cigarettes, property of the Marine Corps Exchange.
	Award:  Forfeiture of $323 per month for 1 month, restriction and extra duty for 7 days.  Forfeiture suspended for 6 months.  Not appealed.

021206:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 021203, tested positive for cocaine.

021218:	Substance abuse evaluation by Substance Abuse Counselor.
	Assessment: Does not reveal any patterns of drug abuse or dependence.

021219:	Counseling:  Advised of deficiencies in performance and conduct (Not being recommended for promotion.  I have been informed by my Commanding Officer that I am not eligible for promotion to Corporal for a period of 18 months, because of positive confirmation from the DOD-certified drug testing laboratory).

030117:	Applicant advised of Veterans Administration drug and alcohol rehabilitation treatment facility availability.

030218:	NJP for violation of UCMJ, Article 112a:
	Specification: In that Lance Corporal T_ (Applicant) did, wrongfully use of a controlled substance per NAVDRUGLAB Jacksonville, msg 061805Z.
	Award:  Restriction and extra duty for 45 days, reduction to E-2.  Not appealed.

030224:	Counseling:  Advised of deficiencies in performance and conduct (Misconduct: specifically your inability to obey orders and conform to standards set by the Uniform Code of Military Justice), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030311:	Applicant notified of intended recommendation for under other than honorable conditions discharge by reason of misconduct due to drug abuse.  The factual basis for this recommendation was contained in NAVDRUGLB MSG dtd 061805Z indicating the Applicant tested positive for cocaine.  The Applicant also pleaded guilty at nonjudicial punishment on 030218 for wrongful use of a controlled substance.  The least favorable characterization of service possible is under other than honorable conditions.

030311:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

030314:	Commanding Officer, 3d Battalion, 12th Marines, recommended to Commanding General, 3d Marine Division via Commanding Officer, 12th Marines, Applicant’s under other than honorable conditions discharge by reason of misconduct due to drug abuse.  The factual basis for this recommendation was Private First Class W_ L. T_ (Applicant) tested positive for the controlled substance, cocaine.  He also plead guilty at nonjudicial punishment for wrongful use of a controlled substance.  This indication of improper conduct reflected his disregard for regulations and his total lack of desire to adapt to military discipline.  By these actions, he has demonstrated conduct of a nature to bring discredit upon the Armed Forces and a total disregard for the standards of conduct expected of a United States Marine.  

030319:	Counseling:  Advised of deficiencies in performance and conduct (Misconduct and demonstrated inability to obey orders and regulations), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

030423:	An Administrative Discharge Board, based upon a preponderance of the evidence and by majority vote, found that the Applicant had committed misconduct due to drug abuse, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

030530:	SJA review determined the case sufficient in law and fact.

030603:	GCMCA, Commanding General, 3d Marine Division, 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 20030717 by reason of misconduct due to drug abuse with a service characterization of under other than honorable conditions (A and 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).  

An under other than honorable conditions discharge 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.  The Applicant’s service record contains  two retention warnings and three nonjudicial punishment proceedings for violations of Articles 92, 112a  and 121 of the UCMJ.  The Applicant’s violations of Articles 92, 112a and 121 are considered serious offenses.  The Applicant’s conduct during his service is considered a violation of the special consideration given the Applicant evidenced by the three waivers required for the Applicant’s enlistment.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant implies that his discharge is inequitable because it is somehow related to a series of events related to the Applicant’s lack of prescription glasses and a congressional inquiry precipitated by the Applicant’s father.  There is no indication in the record or in the evidence submitted by the Applicant that the Applicant’s Commanding Officer or anyone else in the Applicant’s chain-of-command acted improperly or inequitably in the adjudication of the Applicant’s infractions of the UCMJ or subsequent administrative separation.  The Applicant tested positive for illegal drug use, was notified of the intention to recommend his discharge due to drug abuse and appeared before an administrative separation board.  The board, by majority vote, determined the Applicant used drugs and recommended the Applicant’s under other than honorable conditions discharge by reason of misconduct due to drug abuse.  The separation authority directed the Applicant’s discharge in accordance with the board’s recommendation.  There is no evidence of any improprieties or inequities in the Applicant’s processing.  Relief denied.

The Applicant contends that his “appeal is based on some inconsistencies and a number of omissions [in his] OMPF.”  The Applicant contends that his counseling for failing to report for restricted muster is undeserved.  The Applicant contends that the restriction muster record he provided the Board proves that he reported properly.  The Board noted that the Applicant’s document supports his contention.  However, the Board also recognizes that restriction muster documentation typically includes the restriction muster record maintained by the Applicant and a restriction muster record maintained by the Battalion OOD.  The Applicant also contends that he did not intend to steal cigarettes from the Marine Corps Exchange Annex.  The Applicant’s Article 121 violation for larceny was adjudicated at NJP.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he willfully violated Article 121 of the UCMJ.  Concerning the Applicant’s “inconsistencies,” with respect to his counseling for failing to make restricted muster and his nonjudicial punishment for larceny, the evidence of record and documents submitted by the Applicant did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant contends that he personally knows of Marines who had “positive drug tests” and were retained.  The Applicant asserts that, after his positive urinalysis, he accompanied the unit to Camp Fuji, where he served as ammo team chief and volunteered at a local orphanage.  The Applicant further contends that, prior to his first deployment to Okinawa, he was awarded a secondary MOS of 8531, rated “WSQ” for swim qualification and earned an additional MOS as a lifeguard.  Regarding the Applicant’s contention that he served honorably before and after his positive urinalysis, the Board found that despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  There is credible evidence in the record that the Applicant used illegal drugs and 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 Board found the Applicant’s discharge proper and equitable.  Relief denied.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 sufficient post-service documentation for the Board to consider.  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.  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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, failure to order/regulation, Article 112a, wrongful use of a controlled substance and Article 121, larceny.

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 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