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


FOR OFFICIAL USE ONLY


ex-Pvt, USMC
Docket No. MD06-00372

Applicant’s Request

The application for discharge review was received on 2005122 8 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) . The Applicant requests a documentary record discharge review or a personal appearance before a traveling panel closest to Scottsburg, Indiana . The Applicant designated Disabled American Veterans as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. The Applicant was also notified that all hearings are conducted in the Washington D.C. area.



Decision

A documentary discharge review was conducted in Washington, D.C. on 20061108 . 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:

“ Veteran admits one mistake, after 4 years 10 months of honorable service and combat duty. Veteran is a 25 year old, whose life will be drastically altered if not given this consideration. Veteran understands his mistake.

Veteran admits being under the influence of Alcohol, but does not remember the use of an y drugs. Veteran is a combat Veteran of Kuwait and Afghanistan, and until this incident, served honorable.”

Applicant’s remarks taken from the DD Form 293:

“I regret having di srupted military discipline & br ing any dishonor to the Marine Corp [sic] but I’m asking to be able to continue my life without this shadow.”

Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

“Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in the request for a discharge upgrade of the current Other Than Honorable Conditions discharge to General Under Honorable Conditions.

The FSM served on active service from July 17, 2000 to March 25, 2005 at which time he was discharged due to Misconduct.

The FSM makes contentions on application and shares his belief that he was inappropriately discharged. He admits to alcohol use, but the only drugs used were his prescribed medication of Neurotin, which was prescribed for his cervical disability. The medication, Neurotin is a controlled substance that could easily cause a positive reaction on a urinalysis test. When this is taken into consideration with the fact that the FSM did not have a drug waiver on entry into service, has no past history of use, is a combat veteran of Kuwait and Afghanistan, and whom served honorably until this single incident, it is apparent the current discharge is improper.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We maintain that the current character of discharge is to harsh when compared to the overall record of service and a General discharge would more appropriate, and allow for equitable relief for this combat veteran.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.

Respectfully,

K_ L. G_
National Service Officer”

Documentation

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

Applicant’s DD Form 214 (Member 4)
VA Form 21-4142 dtd December 6, 2005 (2 pages)
VA Form 21-22 dtd December 6, 2005 (2 pages)
Sixty-two pages from Applicant’s medical record

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PART II - SUMMARY OF SERVICE

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

         Inactive: USMCR (DEP)    19991029 - 20000716       COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 20000717              Date of Discharge: 20050325

Length of Service (years, months, days):

Active: 0 4 0 8 08 (does not exclude lost time)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              23

Age at Entry: 18

Years Contracted: 5

Education Level: 12                                 AFQT: 53

Highest Rank: Cpl                                    MOS: 6257

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: 4.1 ( 13 )                                Conduct: 4.0 (13)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Global War on Terrorism Service Medal, Sea Service Deployment Ribbon (3rd Award), Armed Forces Expeditionary Medal (Kuwait), Global War on Terrorism Expeditionary Medal (Arabia Sea), National Defense Service Medal, Presidential Unit Citation-Navy, Certificate of Commendation (Individual Award), Rifle Expert Marksmanship 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 :

991027:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

010416:  Counseling: Advised of deficiencies in performance and conduct ( Drinking under the legal age of 21.) necessary corrective actions explained and sources of assistance provided.

020130 :  NJP for violation of UCMJ, Article 92 : Failure to Obey Order or Regulation. S pecification : In that [Applicant], having knowledge of a lawful order issued by the Commanding Officer, USS THEODORE ROOSEVELT, to refrain from sexual activity aboard ship, did, on or about 020303, fail to obey the same by wrongfully engaging in sexual activity onboard USS THEODORE ROOSEVELT.
         Award: Forfeiture of ½ pay per month for 2 mo nths , restriction and extra duty for 16 days, reduction to E- 2 . Not appealed.

041021 :  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 041018 , tested positive for cocaine .

04111 9 :  Substance Abuse Counseling Center, Beaufort, SC: Applicant screened due to positive urinalysis for illegal drugs. Diagnostic Impression and Recommendations: No Diagnosis V71.09, Early Intervention.

041123:  Applicant’s Memorandum of Pretrial Agreement.

050106 :  Counseling: Advised of deficiencies in performance and conduct ( Violating Article 112a (wrongful use of a controlled substance (cocaine) ) of the UCMJ and found guilty by Summary Court-Martial on 20050106.) necessary corrective actions explained and sources of assistance provided.

050106 :  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 112a : Wrongful use, possession, etc., of controlled substances.
         Specification: Wrongful use of a controlled substance.
         Finding: to Charge and the specification thereunder, guilty.
         Sentence: Forfeiture of $411.00, reduced to E-1, confinement for 30 days.
         CA action 050121: Sentence approved and ordered executed.
         SJA Action, 050125: Article 64 UCMJ having been complied with, the conviction is final in the sense of UCMJ Articles 44 and 76.

050106:  Commanding Officer, Marine Fighter Attack Squadron 251, conducted an administrative separation interview with Applicant. Commanding Officer’s comments: “ [Applicant] was informally counseled concerning the commencement of an administrative discharge process on him based on the findings of a Summary Court Martial, held on this day, for violation of Article 112a, Wrongful Use of a Controlled Substance (cocaine). The administrative separation is being conducted without hearing by an Administrative Separation Board pursuant to a Pre-Trial Agreement with [Applicant] in which he pled guilty to Article 112a. ”

050106:  Applicant to confinement.

050130:  Applicant from confinement.

0 5 0216 :  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis for this recommendation was the Applicant’s summary court-martial. Applicant informed the least favorable character of service possible was under other than honorable conditions.

050217    Applicant advis ed of rights and having consulted with counsel, elected to waive all rights.

050222 :  Commanding Officer, Marine Fighter Attack Squadron 251 , recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

050321 :  SJA review determined the case sufficient in law and fact.

050321:  GCMCA, Commanding General, 2d Marine Aircraft Wing, 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 20050325 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 ).

The Applicant contends, through his representative, that his discharge is improper because his “prescribed medication of Neurotin… could easily cause a positive reaction on a urinalysis test.” There is credible evidence in the record that the Applicant used illegal drugs. The evidence of record shows that the Applicant tested positive for cocaine use and pled guilty to violating Article 112a of the UCMJ, wrongful use of a controlled substance, at summary court-martial. 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. Relief denied.

The Applicant implies that his discharge is inequitable because he made “one mistake, after 4 years and 10 months of honorable service.” The Applicant’s representative contends that the discharge is too harsh when compared to the Applicant’s overall service record. 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 two retention warnings, nonjudicial punishment proceedings and a summary court-martial conviction for violations of Articles 92 and 112a of the UCMJ. Violations of Articles 92 and 112a are serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at special or general court-martial. 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 Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant implies his discharge is inequitable because his “life will be drastically altered if not given this consideration.” Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. The Applicant’s discharge was found to be proper and equitable. Regarding the Applicant’s issue, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Additionally, the Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. Relief 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 Naval service. 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 relevant post-service 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 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. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, failure to obey order/regulation or Article 112a, wrongful use of a controlled substance.

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 .

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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