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USMC | DRB | 2005_Marine | MD0501460
Original file (MD0501460.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD05-01460

Applicant’s Request
The application for discharge review was received on 20050829. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) and the Narrative Reason for Separation be changed to “medical.” The Applicant requests a documentary record discharge review. The Applicant designated a non-credentialed representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060628. 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 and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I rate medical, (my burn injuries 80%) found in line of duty OTH issued for offence prior to injuries found in line of duty Admin sep was stopped to run medical and for reasons I believe to be personal against me Admin sep was reinstated and run at same time as medical separation. I had been in contact with inspector gen. off. And believe this is why Admin was reinstated to run at same time as medical before I checked in to 9/com I was 4.7 4.6 pro con. Marine. PTSD. As well.”

 The Applicant’s representative submitted no issues for consideration.
Documentation
Only the service record book and medical record were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19920821 - 19930119      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19930120             Date of Discharge: 19960322

 Length of Service (years, months, days):

 Active: 03 01 08 (Excludes lost time)
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              25 days

 Age at Entry: 20

 Years Contracted: 4

 Education Level: 12                                 AFQT: 56

 Highest Rank: LCpl                                  MOS: 3051

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (10)                               Conduct: 4.1     (10)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbon, Letter of Appreciation (3rd Awd), Rifle Sharpshooter Badge


 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 :

920819:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
930120:  Pre-service waiver granted.

940913:  Counseling: Advised of deficiencies in performance and conduct (Alcohol related incident. Specifically falling from the second deck of bldg 1396 on 940909 while intoxicated (bac .249)), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940916:  Medical Board Report Evaluation, Naval Hospital, Camp Pendleton, CA: Admitted to the Naval Hospital, Camp Pendleton, CA on 940909 for the diagnosis of alcohol abuse and lumbar spine fracture. While under the influence of alcohol, he fell off the second floor balcony in his barracks. He was brought to the Emergency Room with complaints of back pain and was quite intoxicated. Past medical history is positive for previous use of alcohol.
         Present diagnosis: (1) “Chance” fracture of the first lumbar vertebra, DNEPTE, NCD. (2) Alcohol abuse, DNEPTE, NCD.
         Opinion: The maximum benefits of inpatient care have been achieved yet this member is not fit to return to full duty. With appropriate time to heal his fracture and rehabilitation, he should recover from this injury and be able to return to full duty within six to twelve months.
         Recommendation: Patient assigned six months limited duty; such duty to be near a Naval Hospital which has the ability for monthly follow-up examinations, adequate physical therapy and orthopedic care. He has been instructed to wear his jacket at all times when he is not supine in bed. Such duty should preclude prolonged standing, walking, running, physical fitness training/testing, shipboard activities, rifle range or deployments. He should take great care to avoid potentially hazardous situations.
         The patient will schedule an appointment for reevaluation two months prior to the end of limited duty to determine fitness for return to full duty.

941006:  Lt E. I. W_, MC, USNR GMO, Addendum to M.O. note of 941004: Impression: AXIS I: ETOH abuse possibly dependence. AXIS II: Probably histronic/possibly borderline. AXIS III: Chance fracture L, Skin Burns 2 nd /3 rd degree healing (no sign infection). Plan: Limited duty board directed by Ortho consult for Anger Class – family services EOTH Rehab with SACO. Level II or III. No psychiatric consult at this time. RTC prn.

941108:  NJP for violation of UCMJ, Article 91: SNM was insubordinate and disrespectful in language towards MSgt B_ by saying to him “that he was a pain in his a--!”
         Violation of UCMJ, Article 89: SNM was insubordinate and disrespectful towards LtCmdr E_ by not obeying a direct order to lay still.
 Violation of UCMJ, Article 134: SNM communicated a threat to LtCmdr E_, and the emergency room staff by saying “I’m going to remember your faces and I’m going to kill all your families.”
Violation of UCMJ, Article 134: SNM wrote worthless checks to MWR Activities aboard MCB, Camp Pendleton on or about 21 Sep 94 to 20 Oct 94, to wit: $920.79.
          Award: Forfeiture of $466 per month for 2 months, restriction for 60 days, reduction to E-2. Not appealed.

941223:  Counseling: Advised of deficiencies in performance and conduct (Minor disciplinary infractions. Specifically Bn NJP on 941109 for Article 91 Disrespectful and insubordinate conduct to a SNCO; Article 89 insubordination and disrespect to an Officer; Article 134 Communicating a threat; Article 134 writing bad checks. Additionally counseled for alcohol abuse on 940913; falling off the second deck bldg 1396 while intoxicated (BAC .249) Also disobeying orders on 941216 by having hard liquor in BEQ room while on Bn restriction and breaking restriction by not signing in on time (overslept) on 941218. This kind of frequent misconduct will not be tolerated.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950117:  Counseling: Advised of deficiencies in performance and conduct (Alcohol related incident. U.A. from work, insubordinate language and conduct, and disorderly conduct on 950112. Furthermore identified by a medical Officer that SNM has a serve Personality Disorder, but such a disorder does not relieve SNM of responsibility to accept the consequences of actions.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950223:  NAVDRUGLAB, San Diego, CA reported Applicant’s urine sample, received 950217, tested positive for methamphetamine.

950302:  NJP for violation of UCMJ, Article 86: UA from HqCo, 9 th CommBn, on or about 0730, 950112 through 0900 950112. SNM was found by Sgt. M_, seemingly intoxicated.
 Violation of UCMJ, Article 91: On or about 950112, SNM was insubordinate in conduct and language by stating he would slit SSgt B_’s throat if given the opportunity.
Violation of UCMJ, Article 134: On or about 950112, SNM reported to work in an intoxicated state, becoming verbally and physically abusive, towards others and himself, and could be heard banging on wall lockers, and yelling in the head.
Violation of UCMJ, Article 86: UA from 13 Area Gym 0600, 950223 through 0755, 950223. SNM required to be at 13 Area Gym for morning rehab from 0600-0700, then report to work at Bldg 13051.
         Award: Forfeiture of $427 per month for 2 months, extra duty for 45 days, reduction to E-1. Not appealed.

950309:  Medical Board Report Evaluation at Naval Hospital, Camp Pendleton, CA: Attention is invited to a previous six month limited duty board from Naval Hospital, Camp Pendleton, in September 1994, for the same diagnosis.
 Present diagnosis: Healing bony chance fracture at L-1 vertebra, DNEPTE, NCD.
          Opinion: Patient is presently unable to perform full duty. It is anticipated that the member will return to full duty status at the end of the recommended period of limited duty. The member is making satisfactory progress in his healing and recovery from his Chance fracture. He has now achieved bony union but still needs rehabilitation to restore his endurance and the strength of his trunk muscles to allow him to return to the activities required of full duty.
         Recommendation: Patient be assigned an additional six months limited duty, such duty to be near a Naval Hospital which has the ability for monthly follow-up examinations. Such duty should preclude prolonged walking, standing, running, PFT, rifle range, deployments, or overseas assignments. He may do PT at his own at his pace and should gradually wean from the use of the Kydex jacket.
         The patient will schedule an appointment for reevaluation two months prior to the end of limited duty to determine fitness for return to full duty.

950411:  Summary Court-Martial.
          Charge: violation of the UCMJ, Article 112a:
          Specification: On or about 13 Feb 95, wrongfully used methamphetamine, a controlled substance.
          Finding: to Charge and the specification thereunder, guilty.
          Sentence: Forfeiture of $569.00, confinement for 30 days, reduced to E-1.
         CA action 950418: Sentence reviewed and executed except for reduction to Private which is disapproved.

950411:  Applicant found fit for confinement.

950411:  Applicant to confinement.

960506:  Applicant to duty.

950517:  Commanding Officer, Headquarters Company, 9th Communication Battalion, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to frequent involvement, of a discreditable nature, with military authorities.

950523:  Consultation Report: Impression: 1. Alcohol dependence. 2. Amphetamine abuse. 1) Process for administrative separation. 2) Counseled on VA.

950622:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse, and frequent involvement of a discreditable nature, with military authorities. The factual basis for this recommendation was use of illegal drugs as evidenced by summary court-martial of 11 Apr 95 and two battalion non-judicial punishments received for threatening a staff non-commissioned officer, on two occasions, and a superior commissioned officer.

950622:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
950714:  Commanding Officer, 9 th Communication Battalion, recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse, and frequent involvement of a discreditable nature, with military authorities. Commanding Officer’s comments: “On 22 June 1995, I notified Private R_(Applicant) of my intention to administratively separate him from the Marine Corps, as seen in enclosure (1). Private R_(Applicant) use of methamphetamines, and his continued frequent involvement with military authorities demonstrates a marked departure from the conduct expected of Marines. Enclosure (2) reflects Private R_(Applicant) overall poor record of performance.
 I recommend that Private R_(Applicant) be separated with an Other Than Honorable characterization of service, separation proficiency and conduct marks of 2.5 and 2.5 respectively, and a reenlistment code of RE-4.”
950809:  Administrative message from NAVMEDCEN San Diego, CA: Applicant sustained severe injuries in a suicide attempt. Discussion with civilian physician Dr. B_ of UCSD Medial Center, San Diego indicated PNOK and SNOK is medically warranted at the bedside. Due to critical (very serious list) nature of SNM injuries, Lt S_, MC, USN of NAVMEDCEN concurs with this recommendation.

950817:  Psychiatry Department: Applicant being managed at UCSD Hospital Burn ICU for 40% total body surface area (TBSA) gasoline burns secondary to dousing himself with gasoline and setting himself on fire on 6 August 1995 after an argument with his wife.
         Diagnoses:      
AXIS I: Cognitive disorder NOS
 Alcohol dependence, by history
          Polysubstance Dependence, by history
         AXIS II: Deferred.
 AXIS III: S/P 40% TBSA Gasoline burn
 Recommendation: The patient is not mentally capable of handling his own financial affairs
951023:  Capacitation determination: Patient presently being followed in Medical Hold by the Plastic Surgery Department here for 40% total body surface area (TBSA) gasoline burns secondary to igniting gasoline which spilled on him on 6 August 1995 following an argument with his wife.
         Patient initially assessed at UCSD Hospital Burn ICU on 17 August 1995 and declared NOT mentally capable of handling his own financial affairs. Since then, patient has underwent several skin graft operations, and was transferred to NMCSD on 2 October 1995 for further rehabilitation. Diagnoses:           
AXIS I: Alcohol dependence, in partial remission
 Occupational problem
Partner relational problem
          AXIS II: Personality disorder, NOS with borderline and antisocial traits.
          AXIS III: S/P 40% TBSA Gasoline Burns.
         Recommendations: The patient is mentally capable of handling his own financial affairs.

 951114:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

960221:  SJA review determined the case sufficient in law and fact.

960223:  GCMCA, Commanding General, I Marine Expeditionary Force, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse. The primary basis for separation shall be by reason of misconduct due to drug abuse.

960321:  Applicant found medically qualified for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960322 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions. 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).

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. T he Applicant’s service was marred by an alcohol related incident which resulted in the Applicant’s fall from the second floor of a building, an event which resulted in the first of three retention warnings issued to the Applicant. The Applicant was subject to nonjudicial punishment proceedings for violations of Articles 86, 89, 91, and 134 of the UCMJ. The Applicant was also convicted at summary court-martial of violating Article 112a of the UCMJ. The Applicant’s violations of Articles 89, 91, 112a and 134 are considered serious offenses. 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. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. 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. The Applicant was properly processed for administrative separation by reason of misconduct due to drug abuse. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. To change the Narrative Reason Separation would be inappropriate. Relief denied.

 The Applicant implies his discharge is improper because he should have been separated for a medical disability. For the Applicant’s edification, DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Relief on this basis 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. 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 18 Aug 95 to 30 Jan 97.

B. Under the UCMJ, adjudgment of a punitive discharge for conviction by a special or general court-martial for violation of Article 89, disrespect to a superior commissioned officer, Article 91, insubordinate conduct, Article 112a, wrongful use of a controlled substance or Article 134, communicating a threat or Article 134, uttering worthless checks, is authorized.

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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