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USMC | DRB | 2002_Marine | MD02-01316
Original file (MD02-01316.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD02-01316

Applicant’s Request
The application for discharge review, received 020910, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to medical. The Applicant requested a documentary record discharge review. The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030722. 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 and narrative reason 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, as submitted

1. Applicant began experiencing depressive/Manic-depressive symptoms while in the Marine Corps during the summer of 2000. These episodes were then witnessed by Dr. Lr. L_ of Marine Corps Air Station, Cherry Point, NC, and discussed with (Applicant's) Aunt in person and myself over the phone. Dr. Lt. L_ arranged for (Applicant's) transfer to the Hospital at Camp LeJune, NC, where he was treated for several days in December 2000.

In conclusion, I believe (Applicant's) discharge was diluted, due to these symptoms, which were for most of that year.

2. (Applicant) was accused of huffing with several other Marines, during the fall of 2000. It is my understanding that (Applicant), without legal counsel, submitted an admission thereof, at the insistence of his mot immediate Officer, who, maintained that such action would make things easier/better for (Applicant)

In conclusion, I believe (Applicant's) discharge would have been upgraded, with proper medical and legal advice.

Thank you very much,
(Applicant's father)

3. Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable Discharge to that of General, Under Honorable Conditions.

The FSM served on active service from July 21, 1998 to February 2, 2001 at which time he was discharged by reason of Misconduct.

The FSM contends the current discharge is improper because there is evidence of interference of his well-being by a psychiatric condition. A condition which severely affected his judgment and ability to serve.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant's discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f)(1).

In continuance, the FSM goes onto explain that the discharge was the choice of the command, as they provided no assistance or counseling when the FSM had circumstances arise. Thereby forfeiting the FSM's ability to reason and reach sound judgment.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board's discretionary authority, under SECNAVIST 5420.174C.

Under the premises of equitable relief, we believe the Board can change the discharge to reflect a General discharge and the reason to convenience of the government, and leave that to a determination by the Board.

We ask for the Board's careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
Request pertaining to military records Form 180

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                980218 - 980720  COG

 Period of Service Under Review :
Date of Enlistment: 980721               Date of Discharge: 010202

 Length of Service (years, months, days):

         Active: 02 06 12
         Inactive: None

 Age at Entry: 18                          Years Contracted: 5

 Education Level: 12                        AFQT: 76

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (5)                       Conduct: 4.1 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

980126:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
001024:  Medical evaluation for drug/alcohol abuse/dependency found the Applicant did not meet DSM IV criteria for drug or alcohol abuse or dependence.

001030:  NJP for violation of UCMJ, Article 92:
 Specification: Failed to obey order or regulation, to wit: SECNAVINST 5300.28C (intentionally inhaling "Glade" air freshener).
Awarded forfeiture of $563.00 per month for 1 month, restriction for 45 days, reduction to PFC. Forfeiture suspended for 6 months. Not appealed.
001103:  Counseled for deficiencies in performance and conduct. [Illegal drug involvement huffing of "Glade" air freshener which was in violation of SECNAVINST 5300.28C.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
001125:  Medical exam for evaluation of depression reports urine sample positive for PCP. Command notified.

001127:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
001127:  Applicant advised of his rights and having consulted 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.

001127:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was huffing of "Glade" air freshener which resulted in NJP.

001207:  Vacate forfeiture of $563.00 awarded at CO's NJP dated 001103.

 010105:  Psychology Department evaluation: Axis I: Diagnosis deferred on Axis I. Axis II: Personality disorder not otherwise specified (Schizotypal, Paranoid Traits). Psychologist recommends administrative separation due to unsuitability.

010125:  SJA review determined the case sufficient in law and fact.

010125:  GCMCA [Commanding General, 2d Marine Aircraft Wing] 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 010202 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).

 Issues 1-3. There is credible evidence in the record that the Applicant used PCP, an illegal drug. In addition, huffing air freshener is also considered drug abuse. Drug abuse warranted processing for separation, normally under other than honorable conditions. Administrative separation for misconduct takes precedence over possible separation for other reasons. The Applicant’s medical condition did not excuse his drug abuse. No other narrative reason other than drug abuse more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. The Board found no indication the Applicant was inequitably or improperly denied medical treatment or legal rights during his period of service, to include the processing of his administrative separation. The record indicates the Applicant was fully competent to exercise his rights regarding his administrative separation, and that he used drugs, at least in part, to get discharged from the Marine Corps. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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. Relief not warranted.

 The Applicant 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. 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 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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