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NAVY | DRB | 2004 Marine | MD04-00092
Original file (MD04-00092.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00092

Applicant’s Request
The application for discharge review was received on 20031015. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040624. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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, as stated

Applicant’s issues, as stated on the application:

“1. My undesirable Discharge was inequitable because it was based on one isolated incident in 35 months of service with no other adverse action.

2. Document one clearly shows that I was referred to Mental Health while in the military. In fear of being “put away” in a mental ward, I told the doctors I was fine and didn’t understand why my command referred me.

3. Document two shows how I was admitted to Philhaven Hospital on an involuntary basis. I was diagnosed from the hospital with Bipolar I disorder. This situation occurred almost immediately from being discharged from the military.

4. Document three is a statement and prescription from UT medical Group. This document indicates that I am still seeking attention for Bipolar I disorder.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Page from Applicant’s medical record
Discharge summary from Philhaven Behavioral Health Care Services
Letter of treatment from N_ B_, MD
Lithium information sheet and prescription
Letter from Applicant
Horseshoe Casino and Hotel leave request (2 pp.)
Regional Medical Center at Memphis discharge instructions

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                940310 - 940322  COG

 Period of Service Under Review :
Date of Enlistment: 940323               Date of Discharge: 970303

 Length of Service (years, months, days):

         Active: 02 11 09
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 54

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (9)                       Conduct: 4.3 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 4

 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 :

940303:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
961024:  NAVDRUGLAB [San Diego, CA], reported Applicant’s urine sample, received 961011, tested positive for amphetamine/methamphetamine.
961112:  Counseled regarding deficiencies, specifically, the use of illegal substances. Necessary corrective actions explained. Sources of assistance identified. Disciplinary and administrative discharge warnings issued.
961114:  NJP for violation of UCMJ, Article 112a: Tested positive for amphetamine/methamphetamine on urinalysis conducted on 961002.
 Awarded forfeiture of $488.00 per month for 2 months (one month suspended for 6 months), restriction and extra duties for 45 days, reduction to PFC. Not appealed.
961218:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive urinalysis.
961218:  Applicant advised of 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.
961218:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

970219:  SJA review determined the case sufficient in law and fact.

970219:  GCMCA [CG, MCB, CAMPEN, CA] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

970228:  NJP for violation of UCMJ, Article 86: UA from 970218 to 970219 and from 970224 to 970228; violation of UCMJ, Article 91: Disrespectful to Sgt H_.
 Awarded forfeiture of $450.00, reduction to Pvt. Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970303 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 1-4. There is credible evidence in the record that the Applicant used illegal drugs. Drug abuse warranted processing for separation. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Applicant’s medical condition does not excuse his illegal drug use. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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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