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USMC | DRB | 2001_Marine | MD01-01157
Original file (MD01-01157.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD01-01157

Applicant’s Request
The application for discharge review, received 010905, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020417. 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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. C____ R____ has been diagnosed with a mental disorder and was treated for a mental disorder while in the USMC. The circumstances and incidents resulting in his receiving an "under other than honorable" discharge, were directly related to his mental disorder. His actions, through a violation of Navy regulations should be credited to an act of someone not actually responsible for this action. Now that he has been correctly diagnosed and treated he understands his mental problems. He is now able to cope without attempts to self medicate. His treatment has helped him deal with his self-doubt and suicide is no longer contemplated.

2. Since Mr. R____ was misdiagnosed while in the military and therefore not afforded the treatment needed he acted out in an incorrect and illegal manner. He is not now, nor ever has been, a drug abuser. He tried marijuana one time due to his reaction to a mental disorder.

3. The stigma attached to a "bad" discharge from the US Marines should not be a burden borne by this veteran. He served with honor until he began to suffer from a mental disorder. His military records will bear this out based on his performance evaluations. His "plate is full" dealing with a bi-polar disorder and it would be the lifting of a great burden is his discharge would be revised to reflect the true nature of his service to his country-honorable.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Applicant
Letter from T_____ K. M, M.D., Ph. D
Copy of Character Reference Letter from Grandmother
Copy of Reference Letter from A___ M____

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                950810 - 950904  COG

 Period of Service Under Review :
Date of Enlistment: 950905               Date of Discharge: 980722

 Length of Service (years, months, days):

         Active: 02 10 18
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 65

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 (6)                       Conduct: 4.5 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, LOA, COC, Marksman Rifle Badge, GCM

 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 :

950808:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
980223:  Counseled for deficiencies in performance and conduct. [Personality Disorder, also warned that further incidents of this nature will not be tolerated, and was further directed to continue attending any medical/treatment appointments which may have been assigned. These programs are offered to change your discreditable behavior]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980423:  NAVDRUGLAB [JACKSONVILLE, FL], reported applicant’s urine sample, received 980420, tested positive for [THC].

980430:  NJP for violation of UCMJ, Article 112a: On or about April 1998 wrongfully use marijuana.
 Awarded forfeiture of $519.00 per month for 2 months, restriction for 60 days, reduction to E-2. Not appealed.
980527:  Substance Abuse Report indicated applicant was evaluated by a credentialed provider as a result of a command referral and the diagnosis was Drug Abuse (Isolated Incident).

980603:  Naval Hospital Camp Lejeune Psychiatric evaluation indicates applicant was admitted after a suicide attempt. Diagnosed with having a severe Personality Disorder.

980610:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and by reason of convenience of the government due to personality disorder.
980610:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

980610:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and by reason of convenience of the government due to personality disorder. The factual basis for this recommendation was the respondent's illegal use of drugs, THC and his diagnosis from the Department of the Navy Naval Hospital Camp Lejeune North Carolina.

980623:  SJA review determined the case sufficient in law and fact.

980626:  GCMCA [Commanding General] based on the foregoing proceedings, the respondent will be separated from the U.S. Marine Corps. The discharge will be under other than honorable conditions by reason of misconduct due to drug abuse and convenience of the government due to a personality disorder pursuant to paragraph 6210.5 and 6203.3 of the reference. The primary reason for separation will be misconduct due to drug abuse pursuant to paragraph 6210.5 of the reference. Commanding General 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 980722 under other than honorable conditions for misconduct due to drug abuse (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issue 1. While he may feel that his mental disorder was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The Board found no evidence that the applicant’s personality disorder was responsible for the applicant’s decision to use illegal drugs. 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 Board does not consider the circumstances surrounding the applicant’s stated condition and implied incorrect diagnosis to be of sufficient nature to warrant an upgrade to his characterization of service. The applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”. The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.

Issue 3. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The applicant acknowledged the same in a signed letter on 980610, in which he waived his right to an Administrative Discharge Board. His performance prior to the drug abuse doesn’t mitigate his use of illegal drugs. The discharge was proper and equitable. Relief denied.

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 personal hardship, 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 18 Aug 95 to Present.

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 112a, wrongful use of a controlled substance.
C. 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.

D. 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.

E. 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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