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

FOR OFFICIAL USE ONLY

 ex-PFC, USMC
Docket No. MD05-01420

Applicant’s Request

The application for discharge review was received on 20050818.  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 20060525.  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 letter to the Board:

“My discharge was inequitable because I was Drum out of service and my discharge was based on one isolated incident.”

“Dear Sir or Madam:

My name is W_ R. D_ (Applicant), and I am writing in regards to my current discharge status.  I am writing this document to inform you of per taint information that was left out of my military records.  I am just asking that you read this letter and review the facts that I had left out of my original statement.  I know that you have many other candidates to consider and I would just like to thank you for taking the time out to review my information.

On July and August of 20011 went on an unauthorized leave of absence for approximately 20 days.  My best friend’s mother had informed me that C_ had died in a severe car accident.  I was stunned and confused.  I had a thousand things running through my mind.  I went and talked to my Staff Sergeant and explained the situation to him and asked for emergency leave.  He then told me that I could not request leave because C_ was not immediate family.  I explained to him that he was closer to me than my own identical twin brother was and that I needed to pay my last respects.  He said no and basically that I would have to deal with it.  I was completely taken back and so very overwhelmed.  Sir/Madam I know that taking leave without permission and disobeying a direct order was irresponsible and not within the Corps Values that I swore to uphold.  However, I was very young and very ignorant.  I was so overcome with the loss of my best friend, my brother, the person that had always been there for me.  My overwhelming grief and my lack of better judgment overcame my rational thinking.  I am and always will be sorry for not adhering to the code of conduct and disobeying direct orders.

On my way back to Ft. Leanardwood Mo.  I was on the Greyhound bus and I was sitting in the back of the bus, it was very late in the evening and I started to fall asleep.  I then heard the striking of a cigarette lighter.  I open my eyes and saw two men sitting in the row behind me smoking.  I did not think anything of it until I smelled marijuana.  I then asked the two men to put out the marijuana cigarette that they were smoking because I could not breath the smoke in, the two men laugh at me.  So I then walked to the front of the bus and told the bus driver what the two men were doing the bus driver told me that “there is nothing that I can do until I reach the next stop”.  I then returned to my seat.  I over heard the men talking and they stated that the marijuana cigarettes were “laced” with a drug called Ecstasy.

When I finally reached Fort Lenardwood Mo.  I was given a drug test.  Before the test I was asked if they would find any drugs in my system.  I remember being told that even if you breath marijuana smoke in that it could be found in your system.  So I wrote down that I had taken the drugs of marijuana and ecstasy.  Not to self- incriminate, but to have integrity and to tell the truth about what happened.  I now know the extent of not liberating and giving all the details of a situation.  After I told the men in my command that I had taken the drugs.  I was scrutinized and demeaned by my superiors.  So I decided to shut my mouth and not say anything else to anyone.  I went along with everything that my superiors told me to do.  I signed all the papers that my command told me to sign so my punishment would be less (So I was told) I sign the paperwork agreeing to everything.  About three day later my command forced me to see a minister and I psychologist and placed me on suicide watch.  I may have been depressed but I was not crazy.  I never was suicidal.

I feel that the punishment I received at discharge was too harsh and was much worse then other young Marines who had not passed a drug test was given.  I had passed the drug test and I have enclosed copies of drugs screening that my other jobs have given me.  I have passed them all.  I know I had broken the military law by taken unauthorized absents and for that I am utterly sorry for that.  But to be held accountable for actions that my command would not let me explain is not right of just.  Thank you once again for reviewing this information. 
Sincerely,

[signed]  W_ R. D_ III  (Applicant)”

Documentation

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

Applicant’s drug test from Quest, dtd July 30, 2003
Form from Kroll Laboratory, dtd October 25, 2002  (3 pages)
Medical Examination Report, dtd May 16, 2003
Character Reference ltr from S_ T_, dtd July 7, 2005
Character Reference ltr from W_ R. D_ Jr., dtd May 31, 2005
Character Reference ltr from V_ M. H_, dtd March 25, 2005
Character Reference ltr from J_ R_, dtd May 30, 2005
Character Reference ltr from P_ K_, Team Leader, Covergys Corporation, dtd March 22, 2005
Character Reference ltr from C_ D_, dtd May 29, 2005
Ltr of Appreciation from Commanding Officer, R. A. H_, Jr, dtd Sept 20, 01
Applicant’s DD Form 214  (Member 1)
Applicant’s DD Form 214  (Service 2)
Applicant’s DD Form 214  (Member 4)
Ltr of Appreciation from customer G_ P_, dtd January 8, 2004
Certificate of Completion, dtd October 10th 2003
Ltr of Appreciation from customer M_ S. A_, dtd October 14, 2003
Ltr of Appreciation from customer K_, dtd December 13, 2003
Superior Service Award, dtd March 05, 2004
Ltr of Appreciation from customer T_ T_, dtd March 4, 2004
Superior Service Award, dtd March 5, 2004
Ltr of Appreciation from customer D_ S_, dtd October 23, 2003
Superior Service Award, dtd October 24, 2003
Superior Service Award, dtd March 5, 2004
Ltr of Appreciation from customer S_ B_, dtd February 16, 2004
Ltr of Congratulations from A_ C_, Convergys, dtd Dec 2003
Ltr of Congratulations from D_ S_, Convergys, dtd May 21, 2004
Ltr of Congratulations from P_ S_, Convergys, dtd April 19, 2004
Ltr of Congratulations from J_ S_, Convergys, dtd October 08, 2004
Ltr of Congratulations from J_ K_, Convergys, dtd September 30, 2004
Ltr of Congratulations from P_ H_, Convergys, dtd June 25, 2004
Ltr of Congratulations from D. R. L., Convergys, dtd August 14, 2004
Ltr of Appreciation from R_ E_, Senior Vice President, Human Resources & Administration, CMG and Employee Care, dtd November 2004
Certificate for being a Champion, dtd November 2004
Appreciation Certificate, dtd October 2004
Certificate of Completion Merger Basics For Customer Service, dtd November 14, 2004
Certificate of Completion of Merger Training for AT&T Credit and Activation s Assessment, dtd November 14, 2004
Certificate of Completion of Using CSP for Customer Care, dtd November 14, 2004
Certificate of Celebration, dtd October 5, 2004
Meritorious Mast, dtd May 25, 2001
Certificate from School of Infantry, dtd May 25, 2001
Certificate of Completion, dtd January 30, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20001208 – 20010115		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010116		Date of Discharge:  20011130

Length of Service (years, months, days):

Active:    00  10  15  (Does not include lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  34 days
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  66

Highest Rank:  PFC				MOS:  9971

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3				Conduct:  4.3 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksmanship Badge, Letter of Appreciation

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:

001207:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

010721:	Applicant to unauthorized absence at 2359 on 010721.

010813:	Applicant from unauthorized absence at 2359 on 010813 (20 days/surrendered).

010817:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010816, tested negative.

010821:	Statement given by GySgt K_ W. K_:  That on 010816 while I was going over PFC D_ (Applicant)’s UPB for being UA., and after having informed PFC D_ (Applicant) of his rights; PFC D_ (Applicant) admitted to smoking marijuana and taking ecstacy, while he was UA from MARDET Ft. Leonard Wood, MO., between 21 July and 10 August 2001.  PFC D_ (Applicant) was administered a urinalysis test on 010813 which cam back negative for controlled substances as evidenced by MSG DTG R 171614Z AUG 01.  At approximately 1530, 010821 I called PFC D_ (Applicant) back into my office where again I read him his rights; which he affirmed.  He again acknowledged using drugs while he was UA.  I requested PFC D_ (Applicant) to make a written statement surrounding the facts and circumstances of his illegal drug use; where as at which time he elected to exercise the right to consult with a lawyer prior to making a written statement.  I informed PFC D_ (Applicant) that was his right, and I would schedule an appointment for him with legal once his UPB reflects the additional charge of article 112a.

010823:	Counseling:  Advised of deficiencies in performance and conduct (Unauthorized absence status from 010721 to 010810.  Applicant admitted to using marijuana and ecstacy, both of which are controlled substance.), necessary corrective actions explained, sources of assistance provided, disciplinary issued.

010823:	NJP for violation of UCMJ, Article 86:  SNM was UA (AWOL) from 2359, 010721 to 2359, 010810 at MP/NBCIC, MARCORDET, FLW, MO.  
Violation of UCMJ Article 112: SNM wrongfully used marijuana and ecstacy while in a UA status at MP/NBCIC, MARCORDET, FLW, MO.
	Award:  Forfeiture of $584.00 pay per month for 2 months, restriction for 60 days.  Not appealed.

010827:	Counseling:  Advised of deficiencies in performance and conduct (Use of illegal substances (marijuana and ecstacy.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

010924:	Memorandum to the Commander, United States Marine Corps Detachment, Fort Leonard Wood, MO:  PFC D_ (Applicant) was a Command Referral to the Fort Leonard Wood Army Substance Abuse Program (ASAP) on 7 Sep 01 because he alleges that he ingested marijuana during his unauthorized absence.  He also tried to commit suicide.  He was administered a urine test by SACO/MPNBC in which results were negative for THC.  During the counseling session, patient displayed depressive demeanor and suicidal ideation.  Patient related that he understood what he had read and signed prior to his taking the computerized CASI intake.  He was quizzed to make sure he understood what he had signed.  Explanation of why lab testing was needed to the patient.  Patient related that he was experiencing no acute or recent chronic pain.  Patient’s main medical record was checked to see if there was any indication of a drug problem.

011022:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to misconduct of drug abuse.  The factual basis for this recommendation was conviction at Nonjudicial Punishment for the use of illegal substances (marijuana and ecstacy).  

011023:	Applicant advised of rights and having elected not to consult, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

011026:	Commanding Officer, recommended to Commanding General, Training Command that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “Private First Class D_ III (Applicant), has shown no regret for his illegal drug use.  This Marine does not possess the requisite discipline or commitment to continue further service.  I recommend that Private First Class D_ be separated as soon as possible with an Other Than Honorable discharge.

011114:	SJA review determined the case sufficient in law and fact.

020109:	Commanding General, Training Command, advised the Commandant of the Marine corps (MMSB) that the Applicant will be discharged 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 20011130 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).  

The Applicant states “my discharge was inequitable because I was drum out of service and my discharge was based on one isolated incident.” 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. The Applicant’s service record is marred by award of one nonjudicial punishment (NJP) for violations of the UCMJ for Article 86 (unauthorized absence) and Article 112a (wrongful use of a controlled substance: marijuana and ecstacy), thus substantiating the misconduct for which he was separated. The NDRB advises that there was no impropriety in his administrative separation for misconduct due to drug abuse, despite the evidence of record showing that the Applicant’s test result came back negative for controlled substances. The Applicant’s self-admission to drug use is considered as “wrongful use of a controlled substance” punishable under the UCMJ, Article 112a. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  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 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 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