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USMC | DRB | 2005_Marine | MD0500572
Original file (MD0500572.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00572

Applicant’s Request
The application for discharge review was received on 20050208. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions. 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 20050713. 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:

“To Receive VA benefits. I Failed a UA and I used Drugs to help stop the pain that I received while I was Active Duty. They also had me on medications for the pain in my ankle. Those medications were not enough to subside the pain in my R ankle. So I Found my self taking Drugs. other than prescribed medications. to relieve the pain during my military service, and I continued this practice after discharge.

1. Applicant had one incident of drug use, without violence or injury to self of others, which does not warrant “Other Than Honorable” for one incident in two years of otherwise Honerable Service.

2. Applicant’s issue with drug use was voluntarily submitted to military doctors on both admission to service and after the incident of drug use in which Appelant was so Discharged under “Other Than Honorable” conditions.

3. Appellant feels this Discharge is improper due to his ankle Injury not being properly medicated at the time of injury and a Medical Discharge for Such injury was pending at the time of the drug charge against Applicant.”
Remarks: “As a result of my starting to use illegal drugs while on active duty to relieve pain in right ankle and continued use of drugs after discharge, Applicant request discharge upgrade for reasons beyond Applicant’s control.”


 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                951013 - 960129  COG

 Period of Service Under Review :
Date of Enlistment: 960130               Date of Discharge: 971205

 Length of Service (years, months, days):

         Active: 01 10 06
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rank: LCpl                         MOS: 0811

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (5)                       Conduct: 4.0 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: RS

 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 :

951211:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
970517:  NAVDRUGLAB SAN DIEGO CA reported Applicant’s urine sample tested positive for methamphetamine. [Extracted from Commanding Officer’s letter dated 971113.]

 970618:  NJP for violation of UCMJ, Article 112a:
 Specification: Wrongful use of controlled substance. In that LCpl M_ (Applicant) did, at an unknown location at an unknown time on an unknown date, wrongfully use methamphetamines, a controlled substance, while on active duty, the use indicated by the presence of methamphetamines in the body of LCpl M_ (Applicant), detected by urinalysis test at Naval Drug Laboratory, San Diego, CA as confirmed in their message 172054 May 1997.
Awarded forfeiture of $505.00 per month for 2 months, restriction for 45 days, reduction to E-2. Forfeiture suspended for 6 months. Not appealed.
970623:  Medical record entry from Substance Abuse Control Center, Twentynine Palms, CA: Applicant command-referred due to testing positive on a urinalysis for methamphetamine. Applicant admits to using methamphetamine while intoxicated. SACC recommends Level II substance abuse treatment if retained, otherwise, separation for illegal drug use.

970701:  Substance abuse/dependence evaluation for drug abuse found the Applicant does not meet criteria for alcohol abuse, alcohol dependence, or drug dependence and does not need rehabilitation.

970708:  Medical Board Notification from Commanding Officer, Naval Hospital, Twentynine Palms, CA letter to Applicant's commanding officer: Applicant has been evaluated and a Physical Evaluation Board has been initiated. The diagnosis is osteochondral defect, right talus, surgically treated, and deficient anterior talofibular ligament, right ankle, surgically treated. Due to the PEB, the Applicant cannot be released from active duty or discharged from service.
970814:  Counseled for deficiencies in performance and conduct (testing positive for drugs and involvement of a discreditable nature with military and or civilian authorities). Specifically: Applicant tested positive for methamphetamine as confirmed by NAVDRUGLAB, San Diego, CA message 172054Z May 97. Necessary corrective actions explained, sources of assistance provided; Applicant informed that he was being administratively separated for this confirmed drug abuse (use).

970916:  Commanding Officer, Naval Hospital, Twentynine Palms, CA letter to Applicant's commanding officer: the DoN Central Physical Evaluation Board found on 970911 that the Applicant is unfit to remain on active duty because of a physical disability. The Applicant accepted the findings,

 thereby finalizing disability evaluation proceedings in his case. Applicant will be discharged/retired from active duty in the near future as directed by the Secretary of the Navy.
971113:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse. Applicant advised that the least favorable characterization of service he may receive is under other than honorable conditions.
971113:  Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights.

971117:  Commanding Officer, 3d Battalion, 11th Marines recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was the Applicant's confirmed use of Methamphetamine as indicated by NAVDRUGLAB SAN DIEGO CA message 172054Z MAY 97.

971124:  SJA review determined the case sufficient in law and fact.

971125:  GCMCA (Commanding General, 1 st Marine Division (Rein), Camp Pendleton, CA) 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 19971205 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 and 2: The Applicant contends that his discharge was inequitable as he had only one incident of drug abuse (use) in two years of otherwise honorable service and that he voluntarily admitted to such drug use, implying that this admission mitigates his misconduct. The NDRB advises the Applicant that, despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Marine Corps in order to maintain proper order and discipline. The Applicant's misconduct is documented in his service record, which is marred by a non-judicial punishment (NJP) proceeding on 19970618 for violation of UCMJ Article 112a Wrongful use of a controlled substance. This misconduct substantiates the reason for his separation as well as his characterization of service under other than honorable conditions. The Board further advises the Applicant that self-referral for drug abuse (use) constitutes confirmation of misconduct and requires a Marine to be processed for administrative separation. There is no exemption or special consideration given for voluntary admission. No other narrative reason for separation or characterization could more clearly describe why the Applicant was discharged. Relief on this basis is denied.

Issue 3: The Applicant contends that his discharge was improper as he suffered from an ankle injury, which was improperly medicated, causing him to use illegal drugs in order to cope with the pain. The record shows that the Applicant was being seen and treated by competent medical authority at the Naval Hospital, Twentynine Palms, CA. The severity of his condition was evaluated and action was taken to the point of initiating a Physical Evaluation Board in the Applicant's case on 19970708. Regardless, the use of illegal drugs in any situation -- other than as prescribed by competent medical authority -- constitutes a violation of UCMJ Article 112a and is punishable under that Code, to include administrative processing for separation. The Board found that the Applicant's medical condition does not mitigate his misconduct. Relief on this basis is denied.

Issue 3: The Applicant further contends that his separation from the Marine Corps was improper as he was being processed for a medical discharge at the time. The Applicant is advised that DoD disability regulations do not preclude administrative separations due to misconduct. SECNAVINST 1850.4C stipulates that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and, at the same time, is being processed for involuntary administrative separation for misconduct, the findings and recommendations of the PEB do not supersede results of the administrative separation proceedings. Regardless, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition to be of sufficient nature to exculpate the Applicant’s misconduct. In fact, the NDRB sees no connection between the Applicant’s misconduct and his medical condition. Relief on this basis is denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Marine Corps. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any documentation for the Board to consider.

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 P1900.16E), effective 31 Jan 97 until 31 August 2001.

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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