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USMC | DRB | 2001_Marine | MD01-01040
Original file (MD01-01040.rtf) Auto-classification: Denied


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


ex-LCpl, USMC
Docket No. MD01-01040

Applicant’s Request
The application for discharge review, received 010807, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020715. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN 6210.5.
The NDRB did note an administrative error on the original DD Form 214. Block 18, Remarks, should contain the following entry: "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 96AUG19 UNTIL 99NOV08" and Block 28, Narrative Reason for Separation, should read: “MISCONDUCT” vice “MISCONDUCT (RETURN FROM OVERSEAS, LESS THAN 90 DAYS TO EAS)”. The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as submitted

1. (Equity Issue) This former member proffers that the emotional distress caused by the death of thirteen of his family members sufficiently mitigated his misconduct of record to warrant recharacterization of his service period to fully honorable.
2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              960819 - 991108  HON
          Inactive: USMCR(J)                950914 - 960818  COG
Period of Service Under Review :
Date of Enlistment: 991109               Date of Discharge: 001212

 Length of Service (years, months, days):
         Active: 01 01 04
          Inactive: None
Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 49

 Highest Rank: Cpl
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (4)              Conduct: 4.1 (4)
Military Decorations: None

 Unit/Campaign/Service Awards: MUC, SSDR (w/2*), Rifle Sharpshooter Badge

 Days of Unauthorized Absence: None
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 :

991109:  Reenlisted for 4 years at MCAS Futenma, Okinawa, Japan.
000407:  NAVDRUGLAB, Jacksonville, FL, reported applicant’s urine sample, received 000331, tested positive for marijuana.
000428:  Counseled for deficiencies in performance and conduct [illegal drug involvement]. Necessary corrective actions explained and sources of assistance provided.
000622:  Summary Court Martial
          Charge I: violation of the UCMJ, Article 112a.
         Specification: Wrongfully use marijuana at Albany, GA, on or about 31 Mar 2000.
          Finding: to Charge I and the specification thereunder - guilty.
          Sentence: Reduced to E-3.
         CA action 000622: Sentence approved and ordered executed.
000705:  Applicant requested leniency and in consideration for plea of guilty, applicant agreed to unconditionally waive his right to present matters before an administrative discharge board and agreed to accept the characterization of discharge assigned by the convening authority on the pending administrative separation package which, based on his record, could receive an Other Than Honorable Discharge.
000713:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by one Summary Court Martial for violation of Article 112a - wrongful use of marijuana.
000717:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
000718:  Commanding Officer, Marine Tactical Air Command Squadron 18, recommended to CO, Marine Air Control Group 18, that applicant be adjudicated at the Administrative Separation Board and that he be retained in the Marine Corps in spite of his conviction by Summary Court Martial for violation of Article 112a, wrongful use of marijuana.
000905:  Consultation Report: Pt. is 22 year old African-American with 4 years CADU. He requested eval based on suggestions from his father and wife that he see someone for his depression. Pt. stated that some time in Feb, 13 people in his family were suddenly killed in a tornado. He went home and his mother offered him marijuana. This was only the second time in his life he has ever smoked marijuana. He has deeply regretted this action. In addition, he was facing a medical board for migraines and seizure disorder. However, due to use of an illegal substance, his command was planning to administratively separate him. His disposition is pending at the time of this eval. Pt. denied problems with sleep, appetite, concentration, or anhedonia. He did have fleeting suicidal thoughts about 2-3 weeks ago but this was in the context of a severe migraine. He was also thinking about how he had a seizure disorder at such a young age. Pt. stated that he felt "low" most of the time. However, he felt that he could handle the problem he was currently facing.
          Diagnosis:
          AXIS I: Phase of Life Problem, DSM-IV V62.89
                  Bereavement, DSM-IV V62.82
          AXIS II: No diagnosis
          AXIS III: Migraines and Seizure Disorder
 AXIS IV: Military disposition pending, problems of transition from
 military to civilian life
AXIS V: GAF 65 (current)
                   Treatment Recommendation:
                   1. Pt. fit for continuation on LIMDU, as per Neurology.
                   2. Options including medication and counseling were discussed. No
pressing indication for meds at this time. Pt. stated he would prefer not
to go to counseling.
3. Pt. may contact the Mental Health Clinic or the ER should suicidal
 ideation recur.
 4. Follow-up prn.
000906:  CO, Marine Air Control Group 18, forwarded request to President, Administrative Separation Board, not recommending approval of applicant's request to remain on active duty.

000906:  Legal Office returned admin package, advising that applicant has received summary court martial (pre-trial agreement) on 19 June 2000 and that applicant waived his right to an administrative discharge board.
          Returned discharge package for correction.
001010:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by summary court-martial on 22 Jun 00 for violation of Article 112a (wrongful use of marijuana).
001010:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
001010:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was wrongful use of marijuana.

001031:  SJA review determined the case sufficient in law and fact.

 001106:  GCMCA [CG, 1 st MAW] 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 001212 under other than honorable conditions for misconduct due to drug abuse (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).
Issue 1. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The discharge was proper and equitable. While he may feel that emotional distress was a factor that contributed to his actions, the record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
Issue 2. The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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. However, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.


Pertinent Regulation/Law (at time of discharge)
A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until Present.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.
D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls10.jag.af.mil ”.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:
                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                   Washington Navy Yard DC 20374-5023      

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