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USMC | DRB | 2002_Marine | MD02-00568
Original file (MD02-00568.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD02-00568

Applicant’s Request
The application for discharge review, received 020314, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030131. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an impropriety and inequity in the characterization of the Applicant’s service and the reason for discharge. The Board’s vote was unanimous that the character and reason for discharge shall change. The discharge shall change to: HONORABLE/SECRETARIAL AUTHORITY, authority: MARCORSEPMAN 6214.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) This former member avers that he has learned from the mistakes that he made during his enlistment in the Marine Corps and would like the opportunity to serve again. On this basis, he opines that recharacterization of his discharge to fully honorable is warranted.

2. (Equity Issue) This former member 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:
Letter of Recommendation dated December 7, 2001
Character Reference dated December 24, 2001
Applicant's DD Forms 214 (Member 1 and 4)
Appointment of Veterans Service Organization as claimant's representative dated January 8, 2002
Letter of military service dated April 8, 2002
Psychological evaluation dated April 12, 2002
Letter from Applicant dated April 26, 2002
Request for legal services dated October 21, 2001
Psychological evaluation dated October 22, 2001
MCI Online student record dated January 30, 2002 and May 12, 2002
Grade history dated May 9, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                990921 - 000705  COG

 Period of Service Under Review :
Date of Enlistment: 000706               Date of Discharge: 011116

 Length of Service (years, months, days):

         Active: 01 04 11
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 11                        AFQT: 39

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                          Conduct: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*No Marks Found in the service record.

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

 Chronological Listing of Significant Service Events :

990920:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
010702:  Medical Officer evaluation: Diagnosis: Axis I: R/O malingering, occupational problem. Axis II: Cluster B traits R/O PDO. Axis III: S/P ASA OD. P: Fit for full duty. To ER tonight if again becomes suicidal. F/U MHC tomorrow.

011101:  Applicant notified of intended separation for discharge under honorable conditions (general) by reason of misconduct due to drug abuse as evidenced by Applicant's abuse of over-the-counter medications resulting in two incidents of deliberate overdosing, which required emergency medical treatment.
011102:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

011105:  SJA review determined the case sufficient in law and fact.

011105:  GCMCA [Commanding General, Marine Corps Recruit Depot/Eastern Recruiting Region, Parris Island, SC] directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 011116 under honorable conditions (general) 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 both improper and inequitable (C and D).

Issues 1 and 2. The Board determined that abuse of over-the-counter medications is not considered drug abuse for purposes of misconduct and administrative separation. The applicant was improperly separated for this reason. Therefore the Board found that the narrative reason for separation shall change to Secretarial Authority. The Board also found insufficient evidence in the records available for review that the applicant warranted a characterization of under honorable conditions (general). Relief is therefore granted.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.


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 “ afls14.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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