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USMC | DRB | 2006_Marine | MD0600176
Original file (MD0600176.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. MD06-00176

Applicant’s Request
The application for discharge review was received on 20051103. 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 20060915 . 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.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application to the Board:

“I feel that my Character of Service should be changed to HONORABLE because at the time I was discharged I was suffering from extreme pain in both of my knees. The only medication that I was given was Motrin . It did not help the pain . Some of my buddies told me that I should get some marijuana because it was legal in California for medicinal purpose. I made a serious mistake in judgment and used marijuana one time and got caught by a drug test. I realize that what I did was stupid and foolish but I was young and used extremely poor judgment . I loved being a Marine and I have regretted the mistake I made. I am so sorry for what I did and I am hoping that you will reconsider my Character of Service and change my Character of Service to HONORABLE and restore the honor to my family name. I have attached letters from my family, myself and my employer hoping that you will see that I have tried to live a straight and honest life.

Thank you for your consideration in this matter. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character Reference ltr from B_ M_, undated
Character Reference ltr from mother, G_ M_, undated
Character Reference ltr from father, J_ E. M_, undated
Ltr from Applicant, undated
Applicant’s DD Form 214 (Copy 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    199 3 0505 – 199 3 051 7                COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 19930518             Date of Discharge: 19960430

 Length of Service (years, months, days):

 Active: 02 11 13
          Inactive: None

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

 Age at Entry: 21

 Years Contracted: 4

Education Level: 12                                 AFQT: 65

 Highest Rank: LCpl                                   MOS: 1391
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (1 0 )                      Conduct: 4.3 (1 0 )

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Southwest Asia Service Medal (w/1 Star), Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon, Navy Unit Commendation Ribbon, Joint Unit Commendation Ribbon, Letter of Appreciation, Battle “E” Ribbon, 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 :

930504:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
930518:  Pre-service waiver (MGD) granted.
940722:  Medical Evaluation , MEU Service Support Group – 13 Battalion Aid Station sick call, D. D. G _, MD : 22 year old active duty male complain ing of right knee pain for 1 year states never been seen for problem. Patient states it happened in bootcamp from physical exercise. Patient states it feels like a bag of crushed Doritos. No h istory of (illegible) or injury . Positive occasional giving way, positive stiffness. Patient has postivie pain on forward extension of leg, negative redness, negative swelling, negative bruising, negative deformity, negative effusion. Distal NV intact, stable knee.
         Assessment: PFPS
         Plan: Knee school – Consult given
         Follow up as needed

 950619:  Medical Evaluation , MEU Service Support Group – 13 Battalion Aid Station, HM3 D. K_, USN: 23 year old male with Right knee pain. Patient history of PFPS for 1.5 years. Feel s like “Pressure, Pinching feeling pretty much all the time , s t anding , running, RMN. ” With 5 out of 1-10 scale. Patient attended K nee S chool 28 July 94 at Navy Hospital Camp Pendleton. Positive pain on forward extension R leg. No edema, no (illegible), no erethema, no deformity. N V intact, full ROM.
         Assessment: PFPS
         Plan: Motrin 800 mg
         Limited duty 48 hours
         Restart physical therapy learned in school

 950816:  Medical Evaluation , Naval Hospital, Camp Pendleton, CA, D. D. G_, MD : 23 year old male presents to BAS with complaint of right knee pain for 2 weeks. Stated, “We Ran a PFT, and then we were snapping in for the range, and I had to squat down and stand up over and over again. One time when I stood up, I felt a pain on the inside of my knee for about 4 days. Then that stoped hurting and now it hurts on the outside of my knee.” S tates , “It’s a sharp pain right on my knee all the time, but when I walk it shoots up about 3’’. Negative locking, negative giving way, negative numbness/weakness. Patient amb (ulatory) without assistance, normal gate, no apparent limp or distress . K nee appears stable to manipulation . N o cre p itus, no deformities, or edema. Patella ap pe ars normal. Negative tenderness. ROM within normal paramenters. Pain noted on extension, no pain noted on flexion.
         Assessment: L Knee strain
         Plan: Continue knee exercise
         May PT on his own
          Follow up as needed
950831:  Medical Evaluation , Naval Hospital, Camp Pendleton, CA, D. D. G_, MD (Follow up): Patient here for follow up. Slightly better. Still hurts when squatting. (Please see Previous ETR)
         Assessment: L Knee Strain unresolved
          Plan: Continue knee exercises
         Continue motrin
         Continue LD/PT on his won for 2 weeks
         Follow up as needed.
         
951004:  Medical Evaluation , Naval Hospital, Camp Pendleton, CA, R. J. M_, MD : Single 23 year old to sick call with right knee pain x 240. Patient denies any cracking or popping to right knee but has occasional pain to right knee.
         Assessment: Right Knee Strain
          Plan: 1. M otrin 800 mg #30 PO bid x 10 days . Disp 30
          2. Continue knee stretches
          3. RTC if system persist or worsen
          4. Ice 3x day for 15 min x 2 days
         5. Patient instructed/understands.

 951201:  Medical Evaluation , 7 th Engineer Support Battalion Aid Station, HM1 D_ S. M. W_, IDC, RN, USN : Pain on right knee for 3 days, sharp pain on and off, mostly dull. Intensity 4/10, Chronology 2 ½ years.
          Assessment: Right knee, PFPS
         Plan: Full duty
         Motrin 800 mg (30 days)
         Ice TID for 15 min and after exercise
         ROM , leg extensions

960119:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 960112, tested positive for THC.

 960222:  Medical evaluation by CAPT R. A. G_ , MC, USN (treatment facility not identified) :
          Marijuana smoke/5 times total
         Marijuana smoke/1 time active duty 01/96
         Impression: THC abuse-No code
         Recommendations:
         1. Process for separation
         2. Counseled on VA charges
          3. CMD Level I if retain

 960223:  Applicant advised of Veteran’s Administration Drug and Alcohol Rehabilitation Treatment . Applicant afforded the opportunity of an evaluation and medical diagnosis but declined to be enrolled into treatment. Applicant acknowledged diagnosis of drug and/or alcohol abuser by a medical officer and understands that he is not entitled to Veterans Affairs treatment in conjunction with discharge .

960305:  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 112a:
         Specification: Wrongfully used marijuana on or about 960104.
          Finding: to Charge and the specification thereunder, guilty.
          Sentence: Forfeiture of $580.00 pay per month for 1 month, reduced to E-1, 20 days of confinement.
         CA action 960315: Sentence approved and ordered executed.

960306:  Commanding Officer, 1st Bulk Fuel Company, 7th Engineer Support Battalion, recommended to Commanding Officer, 7th Engineer Support Battalion that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was his Medical Officer Evaluation, and Summary Courts Martial conviction on 960305.

 960318:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drugs with a characterization of service of under other than honorable conditions. The factual basis for this recommendation was Medical Officer evaluation and Summary Courts-Martial conviction on 960305.
960318:  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

 960319:  Commanding Officer, 7 th Engineer Support Battalion, recommended to Commanding General, 1 st Service Support Group that Applicant be separated from the U.S. Marine Corps by reason of misconduct due to drug abuse with a characterization of service as under other than honorable conditions.

 960402:  SJA review determined the case sufficient in law and fact.

 9 6 0415:  Commanding General, 1 st Force Service Support Group directs t hat the Applicant be discharged 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 19960430 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).

In the Applicant’s issue, the Board found 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 NDRB advises the Applicant that certain serious offenses warrant separation from the Marine Corps in order to maintain proper order and discipline. Violation of Article 112a (wrongful use of a controlled substance) is considered a serious offense and a punitive discharge is authorized if adjudged at a special or general court-martial. 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 issue raises the implication that his discharge was improper and/or inequitable because it was for misconduct, not for his physical condition, i.e. knee pain. For the Applicant’s edification, DoD disability regulations do not preclude a disciplinary separation. 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 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.

The Applicant submitted 3 letters of recommendation from members of his family and an employer as documentation of post-service accomplishments. 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'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. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 to 30 Jan 97.

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 .


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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