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USMC | DRB | 2005_Marine | MD0500512
Original file (MD0500512.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00512

Applicant’s Request
The application for discharge review was received on 20050131. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests 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 20050512. 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. “I was already in the process of being discharged due to mental complications. Due to a nervous breakdown, I was not in a rational state of mind when incidents occurred. My discharge characterization was changed because of those incidents.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None were submitted.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                001025 - 001029  COG

 Period of Service Under Review :
Date of Enlistment: 001030               Date of Discharge: 020327

 Length of Service (years, months, days):

         Active: 01 04 25         (Does not exclude lost time)
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

 Education Level: 12                        AFQT: 53

 Highest Rank: PFC                          MOS: 4000

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                          Conduct: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: RMB

 Days of Unauthorized Absence: 40

*No marks found in service record.

 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 :

001023:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

010626:  Mental Health Evaluation at Naval Hospital, MCAGCC Twentynine Palms, CA: Diagnostic Impressions:
         AXIS I: Life circumstance problem, Occupational problem, Adjustment disorder with mixed anxiety, depressed mood and physical symptoms.
         AXIS II: Avoidant personality features.
         AXIS III: None reported. See medical record.
         Disposition: Returned to his command for administrative disposition. This member is not considered mentally ill or an immediate danger to himself. He has no psychiatric diagnosis that will result in referral to the Physical Evaluation Board for adjudication. The member is thus returned to full duty.
         Conclusions and recommendations: Applicant should be administratively discharged for the diagnosis of adjustment disorder. The diagnosis of Adjustment Disorder is considered a minor rather than a major psychiatric disorder, but is not considered a physical disability. The patient’s lack of motivation for routine military service (deployment, overseas assignment, etc) is likely to have an adverse impact on his behavior and his performance of duty.
010816:  Applicant admitted to Psychiatric Ward at the Department of Veteran Affairs Medical Center, Salem, VA, with a diagnosis of major depressive disorder with psychotic features.
010830:  Applicant discharged from psychiatric ward. Diagnosis:
                  Axis I: Major depression with psychosis. Dysthymia. Marijuana Abuse.
                  Axis II: Personality Disorder with cluster B and cluster C traits.
                  Axis III: Defer.
                  Axis IV: Marital stressors.
                  Axis V: 35.
 Assessment and Plan: “This 25 year old male [Applicant] appeared to improve during his hospitalization. He no longer exhibited signs of depression. He had no problems with sleeping or eating. The veteran is able to cope with the reality of returning to the military base.”
011001:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Unauthorized absence from 0801, 010720 to 2359, 010815.
Specification 2: Unauthorized absence from 0001, 010906 to 0130, 010920.
Awarded forfeiture of $521.00 per month for 2 months, restriction for 60 days, reduction to E-1. Forfeiture suspended for 6 months. No indication of appeal.
011003:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010927, tested positive for THC.

011023:  Vacate suspended forfeiture awarded at Commanding Officer’s NJP dated 011001.

011023:  NJP for violation of UCMJ, Article 112a:
 Specification: Possess and consume a controlled substance, to wit: marijuana.
Awarded forfeiture of $521.00 per month for 2 months, restriction and extra duties for 45 days. Forfeiture, restriction and extra duty suspended for 6 months. No indication of appeal.
011023:  Counseled for deficiencies in performance and conduct. [Violation of Article 86 x 2, specifically, unauthorized absence. In that the SNM was absent from his appointed place of duty, while aboard MAGTFTF, MCCES.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

011023:  Counseled for deficiencies in performance and conduct. [Violation of Article 112a specifically, use of an illegal substance. In that SNM did posses and consume a controlled substance (marijuana) while aboard MAGTFTC, MCCES.] Necessary corrective actions explained, sources of assistance provided.
020109:  Substance Abuse Counseling Center (SACC) screening: Does not meet Diagnostic and Statistical Manual of Mental Disorder criteria for marijuana abuse or dependency. SACC recommends Applicant be administratively separated due to illegal drug use and mental health issues.
020213:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and a personality disorder.
020213:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

020220:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and a personality disorder. The factual basis for this recommendation your continued failure to adhere to the rules and regulations that govern the United States Marine Corps. CO’s comments:” This Marine has demonstrated a total disregards towards Marine Corp values and principals. Private F_ is no longer deemed suitable for continued service.”

020225:  SJA review determined the case sufficient in law and fact.


020226:  GCMCA, Commanding General, Marine Air Ground Task Force Training Command, Marine Corps Air Ground Combat Center, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse, and convenience of the government due to a personality disorder. The primary basis for separation is drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020327 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 separation process was in strict compliance with the Marine Corps Separation and Retirement Manual. The Applicant was diagnosed with a personality disorder by a competent medical authority. In accordance with regulation, when separation processing is warranted for any reason in addition to personality disorder (convenience of the government), dual or multiple processing is required. The Applicant was dual processed for separation by reason of misconduct due to the drug abuse and convenience of the government due to a diagnosed personality disorder. There is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for Marines who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. 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. The Applicant’s misconduct is clearly documented in the service record. The separation authority determined that misconduct due to drug abuse was the primary basis (reason) for discharge. Relief not warranted.

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by 2 retention warnings and 2 nonjudicial punishment proceedings for violations of Articles 86 (2 specs, UA for a total of 40 days), and 112a (wrongful use, possession of a controlled substance) of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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 P1900.16F), effective 01 September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy    Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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