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


FOR OFFICIAL USE ONLY


ex-LCpl, USMC
Docket No. MD05-01571

Applicant’s Request

The application for discharge review was received on 20050922. The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060614. 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 by reason of misconduct due to drug abuse.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and from an attached document/letter to the Board:

“My son M_ R_(applicant) joined the Marines in July of 1999. He followed a good conduct as an Air Traffic Controller at Miramar Marine Air base until he was dismissed with less than honorable condition on December 30th 2004.

In July of 2004 he voluntary turned himself in for cocaine use. He was immediately tested and taken out of his job and put into Limbo for the next 4-5 months. On or around December the 10th he was told that he was going to be dismissed with less than honorable conditions.

Since that time he after applying has been informed that he has no benefits from the VA including educational even although he fulfilled his first 5 year contract with the Marines.

My wife and I went to San Diego over Christmas in 2004 and upon arrival I could not believe what I saw. My son was a mess and had not cleaned or bathed himself in days. (He was still in the service at the time) He was in a deep depression and I thought he was suicidal. After Christmas and spending a few days with him, I had no choice but to bring him back home to The Colony and have our doctor take a look at him and that we could keep him under supervision. At this time I did try to contact his Commanding officer and left numerous messages to tell him of the situation but never did get a reply. I did though explain the situation to the lady that took the message that time when I called

His wife did not know how to handle him and also had no more interest in trying to handle him.

He has remained with us since that time under our supervision and Doctors care. He is also now seeing a psychiatrist

He has since lost everything he ever possessed including his house, his credit, his 5 year career and his wife.

He has been working full time as a Texas Emission Inspector at Cohn’s Import Auto Clinic at 1098 Texas Street since April 2005 working 6 days a week.

He has been free of Cocaine after treatment for the past 6 months and able to cope with life better today because of the stabilizing medications he has been on.

My question is why after turning himself in 2 months after he was the supervisor when a jet plane crashed at Miramar, did they not have him checked out psychologically and even go into the matter further when he asked them for help. All they did was to push him aside and boot him out. From what I have been told the cocaine was self medication because of his mental condition. As much as I question him about continuing on with his career as an Air Traffic Controller he seems to be scared of the Job and has no more interest in a career he loved. He is only 45 credit hours away from receiving his bachelor’s degree in Air traffic Control

I hope you can research this matter and get back to me, this whole episode has cost me a tremendous amount of money due to the fact they have not given him any benefits at all. I would like to see him get a reclassification to at least an honorable discharge with medical and full benefits

Thanking you very much in anticipation,

[signed]                                                      [signed]
C_ R_                                                          M_ R_(applicant)”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Letter from C_ R_, dtd September 14, 2005 (4 pgs)
Certified Vehicle Inspector Identification Card
Applicant’s DD Form 214
NDRB’s Acceptance ltr dtd September 27, 2005
Letter of Support from N_ M. V_, M.D., P.A. dtd October 13, 2005
Employment Recommendation ltr from T_ M_, dtd October 17, 2005
Letter from G_ V_, MD dtd June 29, 2005
Educational Benefits Claim from Department of Veterans Affairs, dtd June 14, 2005

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USMCR (DEP)    19980724 – 19990712               COG
         Active: USMC              19990713 – 20031103               HON

Period of Service Under Review :

Date of Enlistment: 20031104             Date of Discharge: 20041230

Length of Service (years, months, days):

Active: 01 01 26
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: none
         Confinement:              none

Age at Entry: 22

Years Contracted: 5

Education Level: 12                                 AFQT: 80

Highest Rank: Cpl                                   MOS: 7257

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: 3.7 (2)                       Conduct: 3.7 (2)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Marine Corps Good Conduct Medal, Global War on Terrorism Service Medal, National Defense Service Medal, Navy Meritorious Unit Commendation, Navy Unit Commendation, Certificate of Commendation (Individual Award) (2d Award), Letter of Appreciation (3d Award), Rifle Expert Badge.

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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 :

031104:  Reenlisted this date for a term of 4 years 9 months.

040628:  Counselor, Substance Abuse Counseling Center Screening/Assessment: Substance use below the diagnostic level, no treatment required at this time, ALCOHOL MAAC 0800-1200 26 thru 29 Jul 04, medical evaluation required 1300 on 08 Jul 04. Specific Notes/Instructions: Client does not meet any criteria for Cocaine Abuse/Dependence DSM IV (V71.09). Client is recommended to attend MAAC 26 thru 29 Jul 04 and process IAW MCO P1700.24B.

040701:  NAVDRUGLAB, SAN DIEGO, CA, reported Applicant’s urine sample, received 040623, tested positive for cocaine.

040712:  Applicant declined enrollment into treatment program.

040914:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct drug abuse. The factual basis for this recommendation was Per NAVDRUGLABMSG 012043Z Jul 04, you tested positive for cocaine.

040921:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040923:  Commanding Officer, Headquarters Squadrons, Marine Corps Air Station Miramar, recommended to Commanding General, Marine Corps Air Station Miramar (Attn: SJA) Applicant’s discharge under other than honorable conditions by reason of misconduct drug abuse. Commanding Officer’s comments: “Although a self-referral, Cpl R_’s (Applicant) involvement with drugs is well documented and is incompatible with Marine Corps service. Due to his drug use Cpl R_ (Applicant) is no longer assigned to his MOS and is not a valuable asset to the Marine Corps.”

041101:  Applicant found medically qualified for separation.

041201:  SJA review determined the case sufficient in law and fact.

041208:  GCMCA, Commanding General, Marine Corps Air Station Miramar directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041230 by reason of misconduct due to drug abuse (A) 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 (B and C).

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 Applicant was screened and determined not to be drug dependent. The Applicant reported at the screening that he “got mixed up with the wrong crowd” and “ended up snorting cocaine at the party.” He stated “that this was a one time stupid mistake.” Further, he declined enrollment into a drug treatment program on 040712, a program offered as a result of his admitted 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 provides a medical evaluation with a post-service diagnosis of Bipolar Disorder Type I. He contends that this condition existed during service and that this diagnosis should mitigate the misconduct for which he was discharged. There is no evidence in the record, nor has the Applicant produced any evidence, that the discharge was not proper and equitable. There is no evidence in the Applicant’s records that he reported any psychological problems during his service. During the Applicant’s discharge physical, he reported no history of psychological counseling, no history of depression or excessive worry, and no history of evaluation or treatment for a mental condition. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board found that the Applicant’s characterization of discharge was appropriate. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief is not warranted.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided one letter from his employer and a certified vehicle inspector card as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. Therefore, no relief will be granted.

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 additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective
01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.

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

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

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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