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Docket No. MD99-00112

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

 ex-Pvt, USMC
Docket No. MD99-00112

Applicant’s Request

The application for discharge review, received 971216, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  Subsequently, during the Personal Appearance Hearing, the applicant requested that his discharge be changed to honorable.  The applicant requested a personal appearance hearing in the National Capital Region.  A Scheduling Notice was mailed to the applicant on 980709.  The applicant failed to respond to the Scheduling Notice, which resulted in a forfeiture of his right to a personal appearance hearing.  The Board conducted a documentary discharge review based on available records and supporting documents on 981005.  On 981022, the applicant stated that he never received his Scheduling Notice and requested that his personal appearance hearing be rescheduled for sometime prior to 981226.  The President, Naval Discharge Board approved and directed a new personal appearance hearing.  The applicant listed no representative on his DD-293.

Summary of Review

The NDRB determined that the basis for the discharge is proper and that the characterization of service equitably reflects the quality of service rendered.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct – Drug abuse (with admin discharge board), authority:  MARCORSEPMAN Par. 6210.5.

PART I - APPLICANT’S ISSUES (verbatim)

1.  The undesirable discharge I received for drug involvement should be reconsidered before a review board because I entered the service with a severe Attention Deficit Disorder Syndrome or what is commonly called ADDS.

2.  Because I was not on the proper medications such as Ritalin, Urethylphenidate, Cylert, Prozac and other medication used to correct emotional and behavioral problems related to my disability I made the wrong decisions.  

3.  Without the proper medications and counseling I cannot behave or think or act like a person who would normally carry out day to day fleet Marine Corps tasks.

4.  Since my OTH discharge I have attended and successfully completed the Betty Ford treatment program in Rancho Mirage California.  I have no drug convictions or felony convictions since I’ve been discharge sir.

5.  I started my discharge upgrade process having no idea how difficult it is to get an upgrade.  I was dumfounded when I received my Discharge review Decisional Document saying I failed to respond to a Scheduling Notice resulting in a forfieture of my right to appear in person before your board.  I never received the 980709 notice.  Not knowing until weeks before the hearing when my actual NDRB appearance was has pout me on the defensive with a significant disadvantage but I didn’t give up.  Finding an attorney in the DC area from Micronesia by telephone has been nearly impossible.  A continuance in the name of equitable fairness is/was in my best interest.
In reviewing the order of events in my life and it’s surrounding circumstances it seems things or situations like this last minute reinstated NDR are typical of the results reflecting my ADHD and Dyslexia.  Reactions and negative results seem to seal my fate in hurried rushes all too often.  I have struggled for years with similar occurances time and time again and by the grace  of God eventually discovered why I was so different from other people.  At Betty Ford Center my counselor T_ told me two weeks into treatment on or around June 15, 1988 that I had either ADDS, ADHD or both     I couldn’t accept or come to terms with my disorder and struggled with my disability for three more years. I finally got back on Ritalin in May of 1991.  This leveled the playingfield for me in life immensely.
My mother had told me I had grown out of hyper activety and pulled me off of medication.  This is why I did not list it on my enlistment documents.  In the early to mid 80’s Attention Deficit Disorder in Adults was uncovered.  Unfortunately I didn’t hear about it until the late 80’s.
I didn’t want to leave the Marine Corps.  I was drummed out.  If I had known then what I know now I 1) wouldn’t have enlisted, or 2) sought treatment and Ritalin while I was in the Marine Corps to get through my tour.  I hope & pray that you see a marked change since my Marine Corps days.
My service record indicates the Marine Corps desire to give me a general under honorable discharge.  I am still am not clear (to this day) what I did to warrant an OTH.  I had no idea I had orders to Miramar and new nothing about treatment for substance abuse until years later.
I was pushed out of the Corps systematically with an abrupt final seperation.  Only after I had loaded my seabag in the Jeep to leave base for good did my gunny run out from admin to tell me that orders had been cut to Miramar for me.  He told me I should know they had been cut and not cancelled officially before I left base.  A minute later I was driven off Camp Pendleton and dropped off out in town.  I promise this is a true statement under penalty of perjury.  I pray that my discharge be upgraded to general Under Honorable.

PART II - SUMMARY OF SERVICE

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

	Active:	None
	Inactive:	USMCR (J)		821207-821226	COG

Period of Service Under Review:

Date of Enlistment:  821227			Date of Discharge:  840515

Length of Service (years, months, days):

	Active:  01  04  20
	Inactive:  None

Age at Entry:  19				Years Contracted:  4

Education Level:  11				AFQT:  56

MOS:  0481					Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (4)				Conduct:  3.6 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksmanship Badge

Nonjudicial Punishment(s):  1		Court(s)-Martial:  None

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge:

Discharged UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (with admin discharge board), authority:  MARCORSEPMAN Par. 6210.5.

PART III - CHRONOLOGICAL LISTING OF SIGNIFICANT SERVICE EVENTS^1

821206:	Applicant indicated on Standard Form 98 (Report of Medical History) that he had never suffered from nervous trouble of any sort. 

821207:	Applicant indicated on DD Form 1966 that he had never been a patient (whether or not formally committed) in any institution primarily devoted to the treatment of mental, nervous, emotional, psychological, or personality disorders.  Declaration on Drug Abuse indicates applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

821228:	Joined 3^nd RTBN, RTR, MCRD, Parris Island, SC.

830406:	Joined MCES, MCB Camp Lejeune NC.

830629:	Joined BCO, 1^ST LANSPTBN, 1^ST FSSG, Camp Pendleton, CA.

830825:	NJP for violation of UCMJ, Article 134:  Wrongful use of marijuana on or about 830629 at MSSG-17, 17^TH MAU, 1^ST FSSG, FMFPac Camp Pendleton, CA.
	Awarded:  Correctional Custody for 30 days, forfeiture of $250.00 per month for 2 months, and reduction to E-1.  Not appealed.

831205:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by his use of illegal drugs as evidenced by one nonjudicial punishment for the use of marijuana and a recent positive urinalysis for the use of THC, as a result of a random urinalysis conducted on 830928.

831205:	Applicant advised of rights and, having chosen not to consult with  counsel certified under UCMJ Art 27B, elected to appear before an Administrative Discharge Board (ADB). 

831229:	The ADB, by unanimous vote, based upon a preponderance of the evidence, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under conditions other than honorable.

831205:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for the recommendation was the applicant’s use of illegal drugs as evidenced by one nonjudicial punishment for marijuana use on or about 830624 and a positive urinalysis for THC, as a result of a random urinalysis conducted on 830928.

840126:	Joined HqSvcBn 1^ST First Force Service Support Group (FSSG), FMF, Camp Pendleton, CA.

840207:	Commanding General (CG), FSSG, FMFPac, Camp Pendleton, CA. upon review of the discharge proceedings and the applicant’s service record determined that a discharge under honorable conditions was warranted but that execution of the discharge should be suspended for 12 months.  The commanding general directed that page 11 service record entries be made reflecting the foregoing proceedings and counseling in accordance with MARCORSEPMAN 6105.  SJA review (not dated) cited as enclosure (2).  SJA recommended a general discharge with a 12-month suspension.  

840507:	CG, FSSG, FMFPac, directed discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The commanding general commented:  “ 2.  Reference (b) indicated an initial desire to exercise clemency in the form of a request that the applicant’s discharge be upgraded from the board’s recommended other than honorable characterization to a general under honorable conditions discharge with the further provision that the discharge be suspended for a period of twelve months.  3.  Subsequent to the recommendation for clemency, but prior to final action on that recommendation, [the applicant] has been involved in misconduct which changes that initial recommendation.  Based on that subsequent misconduct and the proceedings of the administrative discharge board, it is directed that the respondent be discharged for misconduct in accordance with paragraph 6210.5...”  

840515: 	Discharged UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct – Drug abuse (admin discharge board required but waived) (with admin discharge board), authority:  MARCORSEPMAN Par. 6210.5.

RECORDER’S NOTE:

^1 The source for all entries is the Service Record Book (medical/dental records were not available for review).

 PART IV - EXTRACT OF PERTINENT REGULATION/LAW

A.  Paragraph 6210 MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C, Change 2, effective 840415 until 870728), states, in part:

1.  Whenever a Marine is involved in misconduct, as described in the following paragraphs, commanders shall process the Marine for separation unless rehabilitation and retention are warranted under the guidelines in paragraphs 6105 and 6309.  Characterization of service normally shall be under other than honorable conditions, but characterization as general (under honorable conditions) may be warranted in some circumstances.  For Marines who have completed entry level status, characterization of service as honorable is not authorized unless the Marine's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  When characterization of service under other than honorable conditions is not warranted for a Marine in entry level status, the separation shall be as an entry-level separation.  Separation processing for a series of minor disciplinary infractions or a pattern of misconduct may not be initiated until the member has been counseled in accordance with the guidelines for counseling set out in paragraph 6105.  Counseling and rehabilitation are not required if the basis of separation is a serious offense, a civilian conviction or similar juvenile adjudication, or a serious offense or civilian conviction involving drug abuse.  The separation authority for misconduct discharges is the GCMCA.

2.  Minor Disciplinary Infractions.  A Marine may be separated where there is a documented series of at least three minor disciplinary infractions, during the current enlistment, of a nature which have been or would have been appropriately disciplined under Article 15, UCMJ, commanding officer's nonjudicial punishment.  If separation of a member in entry level status is warranted solely by reason of minor disciplinary infractions, the processing should be under Entry Level Performance and Conduct.  Separation processing may not be initiated until the Marine has been counseled in accordance with paragraph 6105.  The procedures contained in paragraph 6304 shall be used if the Marine is recommended for discharge under other than honorable conditions.

3.  Pattern of Misconduct.   A Marine may be separated where there is a pattern of more serious infractions than in paragraph 6210.2 which include two or more discreditable involvements with civil and/or military authorities or two or more instances of conduct prejudicial to good order and discipline within one enlistment.  Such a pattern may include both minor and more serious infractions.  An established pattern of dishonorable failure to pay just debts and/or to contribute adequate support to dependents or failure to comply with orders, decrees, or judgements of a civil court concerning support of dependents may be processed under this paragraph.  Separation processing may not be initiated until the Marine has been counseled in accordance with paragraph 6105.  The procedures contained in paragraph 6304 shall be used if the Marine is recommended for discharge under other than honorable conditions.

4.  Sexual Perversion.  Sexual perversion is not a specific basis for discharge.  Marine involved in the commission of lewd and lascivious acts, sodomy, indecent exposure, indecent act(s) with or assault upon a child, or acts for compensation shall be processed under paragraph 6210.6 or 6210.7 as appropriate.

5.	Drug Abuse. 

a.  Commanders may process Marines for illegal, wrongful, or improper use, possession, distribution, or introduction on a military installation of any narcotic substance, marijuana or other dangerous or illicit drug or possession, sale or transfer of drug paraphernalia as defined in SECNAVINST 5300.28.  Evidence obtained from an involuntary urinalysis administered pursuant to an inspection under Military Rules of Evidence 313, MCM, 1969 (Rev), or from a search and seizure under Military Rules of Evidence 311-317, MCM, 1969 (Rev), or incident to an exam conducted for a valid medical reason may be used to characterize a member's discharge as under other than honorable conditions.  The procedures contained in paragraph 6304 shall be used when separating a Marine under these provisions, unless a characterization of service more favorable than other than honorable is required.  Marines who have three instances of illegal drug involvement must be processed for separation.  Retention of the three-time offender must be approved by Commandant of the Marine Corps (Code MMSR).

b.  Unless a more favorable characterization is required by this Manual, characterization of service for drug related offenses more favorable than under other than honorable conditions may only be approved by the Commandant of the Marine Corps.

6.  Commission of a Serious Offense.  A Marine may be separated for commission of a serious military or civilian offense under the following circumstances:

a.  The specific circumstances of the offense warrant separation; and

b.  A punitive discharge would be authorized for the same or a closely related offense under the UCMJ: and

c.  The procedures contained in paragraph 6304 shall be used when separating a Marine under this provision.

7.  Civilian Conviction, states that commanders may process Marines who are convicted by civilian authorities (foreign or domestic) or action taken which is tantamount to a finding of guilty, including similar adjudications in juvenile proceedings, when the specific circumstances of the offense warrant separation, and the following conditions are present:

a.  A punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts Martial; or

b.  The sentence by civilian authorities includes confinement for 6 months or more without regard to suspension or probation.

c.  Separation processing may be initiated whether or not a Marine has filed an appeal of a civilian conviction or has stated an intention to do so.  However, execution of an approved separation should be withheld pending outcome of the appeal or until the time for appeal has passed, unless the Marine has requested separation or the member's separation has been requested by the Commandant of the Marine Corps.  Such request must be approved by the Secretary of the Navy who may direct that the member be separated prior to final action on the appeal.

d.  The procedures contained in paragraph 6304 shall be used when separating a Marine under this provision.

B.  Paragraph 1004 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C, Change 2, effective 840415 until 890626), CHARACTERIZATION OF SERVICE, states:

1.  Types of Characterization or Description.  The following types of characterization of service or descriptions of separation are authorized:

a.  Characterization of service as honorable, general (under honorable conditions), or under other than honorable conditions.

b.  Entry level separation.

c.  Order of release from the custody and control of the Marine Corps by reason of void enlistment or induction.

2.  Characterization of Service

a.  General Considerations

(1) Most Marines earn honorable discharges.  A few, for a variety of reasons, do not measure up.  In fairness to the majority who serve honorably and well, commanders and separation authorities should take particular care to ensure undeserving Marines receive no higher characterization than is due.  Table 1-1 contains the rules for determining character of service.

(2) Characterizing service is a form of recognizing a Marine's performance during a period of enlistment.  Marines in general and commanding officers in particular should not underestimate the importance and value of characterization.  For Marines, it serves both as a service goal and as a meaningful endorsement to potential employers.  For commanders, it serves as a tool, all too often unused, in performance counseling and awarding of proficiency and conduct markings.  Characterization of service is based upon a Marine's military behavior and performance of duty, both of which commanders constantly evaluate.  So, conduct and proficiency markings and fitness reports, whichever apply, form the primary basis for determining the character of a Marine's service.

(3) Characterization at separation shall be based upon the quality of the member's service, including the reason for separation.  The quality of service will be determined in accordance with standards of acceptable personal conduct and performance of duty for military personnel.  These standards are found in the UCMJ, directives and regulations issued by the Commandant of the Marine Corps and higher authorities, the enlisted performance evaluation system as set forth in the current editions of MCO P1610.7 (Performance Evaluation System) and MCO P1070.12 (Individual Records and Accounting Manual) respectively, the Marine Corps Manual, and the time-honored customs and traditions of the Marine Corps and naval service.

(4) Only the Commandant of the Marine Corps (Codes MMSR and RES) or general court-martial convening authorities may waive the rules in table 1-1 and approve characterizations based on other than military record alone.  When there is doubt as to appropriate characterization or a commanding officer believes a characterization other than table 1-1 allows is more appropriate, forward a letter describing the particular circumstances, the commander's observations and specific recommendation to the separation authority.  Final action on any such case must occur prior to the separation date.  If not, the Marine receives the higher of the characterizations in question.  In any case where a Marine's record supports honorable characterization and the commanding officer recommends a lesser, notify the Marine per paragraph 6303 of this Manual.

b.  Types of Characterization

(1) Honorable.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of accepted conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

(2) General (under honorable conditions).  If a member's service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the member's conduct or performance of duty outweigh positive aspects of the member's military record.  This characterization may be issued when a Marine's average proficiency duty and conduct marks are below either 3.0 or 4.0, respectively.

(3) Under Other Than Honorable Conditions

(a) This characterization may be issued in the following circumstances:

1  When the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of Marines.

 2  When the reason for separation is based upon one or more acts or omissions that constitute a significant departure from the conduct expected of Marines.  Examples of factors that may be considered include the use of force or violence to produce serious bodily injury or death, abuse of a special position of trust, disregard by a superior of customary superior-subordinate relationships, acts or omissions that endanger the security of the Marine Corps, deliberate acts or omissions that seriously endanger the health and safety of other persons, drug abuse and drug trafficking.

(b)  This characterization is authorized only if the member has been afforded the opportunity to request an administrative board, except in cases of separation in lieu of trial by courts-martial paragraph 6211).

c.  Limitations on Characterization.  Except as otherwise provided in this paragraph, characterization will be determined solely by the member's military record during the current enlistment or period of service to which the separation pertains, plus any extensions prescribed by law or regulation or effected with the consent of the member.

(1) Prior service activities, including records of conviction by courts-martial, records of absence without leave, or commissions of other offenses for which punishment was not imposed shall not be considered on the issue of characterization.  To the extent that such matters are considered on the issue of retention or separation, the record of proceedings may reflect express direction that such information shall not be considered on the issue of characterization.

(2) Preservice activities may not be considered on the issue of characterization except as follows:  in proceedings concerning fraudulent entry into the Marine Corps, evidence of preservice misrepresentations about matters that would have precluded, postponed or otherwise affected the member's eligibility for enlistment or induction may be considered on the issue of characterization.

(3) When the sole basis for separation is a serious offense which resulted in a conviction by a special or general court-martial that did not impose a punitive discharge, the member's service may not be characterized under other than honorable conditions unless approved by the Secretary of the Navy.

(4) The limitations in paragraph 6105 on matters that may be considered on the issue of separation are also applicable to characterization of service.

(5) Conduct in the civilian community of a member of a Reserve component who is not on active duty or active duty for training may form the basis for characterization under other than honorable conditions only if such conduct affects directly the performance of military duties.  Such conduct may form the basis of characterization as general (under honorable conditions) only is such conduct has an adverse impact on the overall effectiveness of the Marine Corps including military morale and efficiency.

(6) A member's voluntary submission to a DoD treatment and rehabilitation program for personal use of drugs and evidence provided voluntarily by the member concerning personal use of drugs as part of initial entry into such a program may not be used against the member on the issue of characterization.  This limitation does not preclude the following actions:

(a) The introduction of evidence for impeachment or rebuttal purposes in any proceedings in which the evidence of drug abuse (or lack thereof) has been first introduced by the member; and

(b) Taking action based on independently derived evidence, including evidence of drug abuse after initial entry into the treatment and rehabilitation program.  However, this does not authorize the use of urinalysis conducted solely as a result of a member's voluntary self-referral; in order for urinalysis results to be used on the issue of characterization, they must not have been obtained as part of a treatment and rehabilitation program.

(7) The results of mandatory urinalysis may be considered on the issue of characterization when the evidence was gathered during an inspection under military Rule of Evidence 313, MCM, or from a search and seizure under Military Rules of Evidence 311-317, MCM, or incident to an examination conducted for a valid medical purpose under military Rule of Evidence 312 (F).

3.  Uncharacterized Separation

a.  Entry Level Separation

(1) A separation initiated while a member is in entry level status (see definition in paragraph 6002.9) will be described as entry-level separation except in the following circumstances:

(a) When characterization under other than honorable conditions is authorized under a reason for separation (chapter 6) and is warranted by the circumstances of the case; or

(b) When characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of military duty and is approved on a case-by-case basis by the Secretary of the Navy.  Honorable characterization will be considered when the member is separated, by reason of selected changes in service obligation, convenience of the Government, disability, or secretarial plenary authority.

(2) With respect to administrative matters outside this Manual that require a characterization as honorable or general, an entry-level separation shall be treated as the required characterization.

b.  Void Enlistments or Inductions.  A member whose enlistment or induction is void shall not receive a discharge certificate, characterization of service at separation, or an entry-level separation.  The separation shall be described as an order of release from custody or control of the service concerned.  However, when a constructive enlistment arises, characterization is required in paragraph 1104.3b(3) below.

(1)	An enlistment is void in the following circumstances:

(a) If it was effected without the voluntary consent of a person who has the capacity to understand the significance of enlisting in the Marine Corps including enlistment of a person who is intoxicated or insane at the time of enlistment.

(b)	If the Marine is under 17 years of age.

(c)	If the person is a deserter from another military service.

(2) Although an enlistment may be void at its inception, a constructive enlistment arises in the case of a person serving with the Marine Corps who:

(a)	Submitted voluntarily to military authority;

(b) Met the mental competency and minimum age qualification in paragraph 1104.3b(1) above at the time of voluntary submission to military authority;

(c) Received military pay or allowances; and

(d)	Performed military duties.

(3) If an enlistment that is void at its inception is followed by a constructive enlistment within the same term of service, characterization of service or description of separation shall be in accordance with paragraph 1104.2 or paragraph 1104.3a, as appropriate.  However, if the enlistment was void by reason of release from the custody and control of the separating service concerned, regardless of any subsequent constructive enlistment, unless the Secretary of the Navy determines that retention is appropriate.

(4) The occurrence of such a constructive enlistment does not preclude the Commandant of the Marine Corps in an appropriate case, from either retaining the member or separating the Marine on the basis of the circumstances that occasioned the original void enlistment or upon any other basis for separation provided in this chapter.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, STANDARDS FOR DISCHARGE REVIEW, states, in part:

“9.2 Propriety of the Discharge

a.  A discharge shall be deemed to be proper unless, in the course of discharge review, it is determined that: 

(1) There exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made); or

(2) A change in policy by the military service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.

b.  When a record associated with the discharge at the time of issuance involves a matter in which the primary responsibility for corrective action rests with another organization (for example, another Board, agency, or court), the NDRB will recognize an error only to the extent that the error has been corrected by the organization with primary responsibility for correcting the record.

c.  The primary function of the NDRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case-by-case basis.  Prior decisions in which the NDRB exercised its discretion to change a discharge based on issues of equity (including the factors cited in such decisions or the weight given to factors in such decisions) do not bind the NDRB in its review of subsequent cases because no two cases present the same issues of equity.

d.  The following applies to applicants who received less than fully honorable administrative discharges because of their civilian misconduct while in an inactive duty status in a reserve component and who were discharged or had their discharge reviewed on or after April 20, 1971:  the NDRB shall either recharacterize the discharge to Honorable without any additional proceedings or additional proceedings shall be conducted in accordance with the Court’s Order of December 3, 1981, in Wood v. Secretary of Defense to determine whether proper grounds exist for the issuance of a less than honorable discharge, taking into account that:

(1) An other than honorable (formerly undesirable) discharge for an inactive duty reservist can only be based upon civilian misconduct found to have affected directly the performance of military duties;

(2) A general discharge for an inactive duty reservist can only be based upon civilian misconduct found to have had an adverse impact on the overall effectiveness of the military, including military morale and efficiency.

9.3 Equity of the Discharge

A discharge shall be deemed to be equitable unless:

a.  In the course of a discharge review, it is determined that the policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable on a service-wide basis to discharges of the type under consideration, provided that:

(1) Current policies or procedures represent a substantial enhancement of the rights afforded a respondent in such proceedings; and

(2) There is substantial doubt that the applicant would have received the same discharge, if relevant current policies and procedures had been available to the applicant at the time of the discharge proceedings under consideration.

b.  At the time of issuance, the discharge was inconsistent with standards of discipline in the military service of which the applicant was a member.

c.  In the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the NDRB viewed in conjunction with the factors listed in this paragraph and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.  Areas of consideration include, but are not limited to:

(1) Quality of service, as evidenced by factors such as:

(a) service history, including date of enlistment, period of enlistment, highest rank achieved, conduct and proficiency ratings (numerical and narrative);

(b) awards and decorations;

(c) letters of commendation or reprimand;

(d) combat service;

(e) wounds received in action;

(f) records of promotions and demotions;

(g) level of responsibility at which the applicant served;

(h) other acts of merit that may not have resulted in formal recognitions through an award or commendation;

(i) length of service during the service period which is the subject of the discharge review;

(j) prior military service and type of discharge received or outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the performance of the applicant during the period of service which is the subject of the discharge review;

(k) convictions by court-martial;

(l) records of nonjudicial punishment;

(m) convictions by civil authorities while a member of the service, reflected in the discharge proceedings or otherwise noted in the service records;

(n) records of periods of unauthorized absence;

(o) records relating to a discharge in lieu of court-martial.

(2) Capability to serve, as evidenced by factors such as:

(a) Total capabilities.  This includes an evaluation of matters such as age, educational level, and aptitude scores.  Consideration may also be given as to whether the individual met normal military standards of acceptability for military service and similar indicators of an individual's ability to serve satisfactorily, as well as ability to adjust to military service.

(b) Family and personal problems.  This includes matters in extenuation or mitigation of the reason for discharge that may have affected the applicant's ability to serve satisfactorily.

(c) Arbitrary or capricious actions.  This includes actions by individuals in authority which constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge the individual or unduly influence the characterization of service.

(d) Discrimination.  This includes unauthorized acts as documented by records or other evidence."

PART V - RATIONALE FOR DECISION

Discussion

	After a thorough review of the records, supporting documentation,^1 facts, and circumstances unique to this case, the Board determined that the basis for the discharge is proper and the characterization of the applicant’s service is equitable.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (with admin discharge board), authority:  MARCORSEPMAN Par. 6210.5.
 
	The applicant was discharged on 840515 under other than honorable conditions by reason of misconduct due to drug abuse.  The record clearly documents the basis for the separation.  The applicant was caught using marijuana and THC while on active duty.  He was punished and processed for discharge in accordance with regulation.  The applicant was thoroughly familiar with the Marine Corps policy regarding illegal use of drugs and the consequences of violating that policy.  He was formally counseled regarding Marine Corps policy concerning illegal use of drugs during the enlistment process.  In addition all Marines are continuously educated throughout their careers on drug policy and any changes to it.  The applicant willfully violated that policy by the use of marijuana on 830624, and the use of THC detected by random urinalysis conducted 830928.   After his NJP, administrative separation processing was initiated.  The applicant was afforded the opportunity to exercise all of the rights of law, regulation, and custom to which he was entitled.  An Administrative Discharge Board (ADB) found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under conditions other than honorable.  The commanding general, upon review of the discharge proceedings and the applicant’s service record determined that clemency was warranted and initially directed a discharge under honorable conditions, suspended for 12 months.  Subsequent to the decision to grant clemency, but prior to action, further misconduct occurred.  Based on that subsequent misconduct and the recommendation of the ADB, the commanding general directed the applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.  The discharge and characterization of service were consistent with Marine Corps policies and standards of conduct, and were proper and equitable in accordance with regulation.  (A, through C, Part IV.)

In issue 1, the applicant contends the undesirable discharge he received for drug involvement should be reconsidered before a review board because he entered the service with a severe Attention Deficit Disorder Syndrome or what is commonly called ADDS.  The applicant provided no documentation in support of this issue.  The applicant’s medical record was not available for NDRB review.  Entries in the service record (821206 and 821207) indicate the applicant had never suffered from nervous trouble of any sort, and had never received treatment for mental, nervous, emotional, psychological, or personality disorders.  Relief is not warranted.  

In issues 2, and 3, the applicant contends because he was not on the proper medications such as Ritalin, Urethylphenidate, Cylert, Prozac and other medication used to correct emotional and behavioral problems related to his disability he made the wrong decisions.  He contends that without proper medications and counseling he cannot behave, think or act like a person who would normally carry out day to day fleet Marine Corps tasks.  The applicant provided no evidence that he suffered from a disability at the time of his enlistment, or that he is currently suffering from emotional and behavioral problems.  Medical issues do not provide a foundation upon which the NDRB can grant relief.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might effect an applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The NDRB found nothing in the service record to indicate the applicant should not be held accountable for his actions.  Relief is not warranted.  

In issue 4, the applicant requests his discharge be upgraded based on post service clemency.  He contends that since his discharge he has successfully completed the Betty Ford treatment program and has no drug or felony convictions.  The applicant provided documentation of a clean police record in the Commonwealth of the Northern Mariana Islands and a copy of his Associate of Arts Degree.  The applicant's efforts need to be more encompassing than those provided.  The applicant should produce evidence of a verifiable employment record, documentation of community service, and proof that he is not using drugs in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that to be eligible for rescheduling of a personal appearance hearing he must submit a DD Form 293, together with creditable evidence that his failure to respond to the Scheduling Notice mailed to him on 980709 was the result of circumstances beyond his control.  The application must be received within 15 years from the date of discharge.

	In the applicant’s issue 5, he opines his difficulties with correspondence between Saipan and Washington, DC, and finding an attorney in the Washington area while at home in Micronesia.  He concludes by writing, “A continuance in the name of equitable fairness is/was in my best interest.”  The Board points out that the applicant was given an extra-ordinary opportunity to appear before this Board due to lost correspondence, and a date was scheduled in accordance with the applicant’s request to appear in December, but prior to 981226.  The Board will not grant a continuance.  The applicant does have the right to reapply for a Personal Appearance Hearing with counsel before this Board as long as his application is received prior to May 14, 1999.

The applicant goes on to opine about his disabilities which he attributes to Attention Deficit Disorder Syndrome (ADDS) or Attention Deficit – Hyperactivity Disorder (ADHD) and dyslexia, and their impact on his life.  The Board sympathizes with the applicant; however, the Board fails to see any connection between ADDS/ADHD and dyslexia, and the applicant’s use of marijuana on at least two separate occasions while in the Marine Corps. and no relief will be granted on the basis of this issue.  No relief will be granted on the basis of this issue.

Finally, the applicant concludes with his description of his departure from Camp Pendleton.  The Board fails to see the connection between this description and the applicant’s order to Miramar, and his discharge.  Whether the applicant had orders to Miramar or not is moot, and no relief will be granted on the basis of this issue.

I was pushed out of the Corps systematically with an abrupt final seperation.  Only after I had loaded my seabag in the Jeep to leave base for good did my gunny run out from admin to tell me that orders had been cut to Miramar for me.  He told me I should know they had been cut and not cancelled officially before I left base.  A minute later I was driven off Camp Pendleton and dropped off out in town.  I promise this is a true statement under penalty of perjury.  I pray that my discharge be upgraded to general Under Honorable.

The Board noted during the hearing that the applicant alluded to his good post-service conduct and the merit that represented.  In reviewing the items submitted, the Board was impressed with the efforts the applicant has begun to make in attempting to recoup his reputation that has been sullied by his misconduct in the Navy.  However, the applicant's efforts need to be more encompassing than those provided.  The applicant should produce evidence of a consistent employment record, evidence of community service, certification of his substance abuse treatment and any continued treatment programs, and proof of his not using drugs in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient types of documentation of good character and conduct.  Therefore no relief will be granted based upon this issue.  He is encouraged to continue with his educational pursuits and obtain permanent employment.  A 15-year window is provided for the possible recharacterization of a discharge, and the applicant is encouraged to employ this venue in order to obtain relief from his current discharge.  The applicant must reapply for a Personal Appearance Hearing with counsel prior to May 14, 1999.

RECORDER’S NOTE:

^1 In addition to the service record, the following additional documentation, submitted by the applicant was considered:

Copy of applicant’s DD Form 214.
Applicant’s letter to the NDRB, dated 970117.
Applicant’s letter to the NDRB, dated 971206.
Copy of document certifying search of available records of the Clerk of Court, Northern Mariana Islands indicated no criminal record, dated 970624.
Copy of Associate of Arts, Liberal Arts (Cum Laude), from Northern Marianas College, dated May 1997.
Service Record documents previously available to the NDRB (27 pages)
Ventura Adun High School Diploma dtd 850612
University of Hawaii, Office of Admission, Records and Financial Aid ltr dtd 970517
University of Hawaii ltr dtd 971216
Hawaii Institute of Child Study memo dtd 980303
University of Hawaii ltr dtd 980807
Department of Commerce, Commonwealth of the Northern Mariana Islands, Business License as Real Estate Agent, valid between 960529 and 970528
Government of Northern Mariana Islands, Certificate of Live Birth dtd 960514
Commonwealth of the Northern Mariana Islands, Office of the commonwealth recorder, Certificate of Live Birth dtd 980106
Spouse’s Letter to the Board dtd 981202
Character References (3).

PART VI - INFORMATION FOR THE APPLICANT

Decision: 

The Board discerned no impropriety or inequity in discharge.  The Board’s vote was unanimous that the basis and character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct – Drug abuse (with admin discharge board), authority:  MARCORSEPMAN Par. 6210.5.

The NDRB did note administrative errors on the original DD Form 214.  Block 24, Character of Service, should read “UNDER OTHER THAN HONORABLE CONDITIONS” vice “Under Conditions Other Than Honorable.”  Block 28, Narrative Reason for Separation should read “Misconduct – Drug Abuse (with admin discharge board)” vice “Misconduct - In Service Drug Involvment.”  The DD Form 214 should be corrected or reissued as appropriate.

	If you believe that the decision in your case is unclear, not responsive to the issues which you raised, or does not otherwise comport with the decisional documents 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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809.

	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
		Building 36 Washington Navy Yard
		901 M Street, SE
		Washington, D.C.  20374-5023.

The remaining portion of this document is divided into 6 Parts: Part I - Applicant’s Issues,  Part II - Summary of Service, Part III - Chronological Listing of Significant Service Events, Part IV - Extract of Pertinent Regulation/Law, Part V - Rational for Decision, and Part VI - Information for the Applicant.

INDEX:  A6600/A9317/A9321/A0145/A0147/A9439/A9221