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


FOR OFFICIAL USE ONLY


ex-LCpl, USMC
Docket No. MD06-00998

Applicant ’s Request

The application for discharge review was received on 20060724 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable . The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant designated a civilian attorney as the representative on the DD Form 293. At the time of the hearing, the Applicant’s representatives submitted an “Applicants Statement of Issues” form, wherein the Applicant requested that the Discharge Characterization of Service be changed to General (Under Honorable Conditions).

Decision

A personal appearance discharge review was conducted in Washington, D.C. Metropolitan area on 20070314. The Applicant was not present for the hearing. An Entry of Appearance was submitted by the Applicant’s attorneys, J_ P. T_ and R_ D. D_. During the hearing, testimony on behalf of the Applicant was provided by the Applicant’s father, W_ J. S_, the Applicant’s mother, S_ P. S_, and G_ S. W_, PhD, LCSW. A fter 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 tha t 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

Decisional Issues:

Propriety – Due process

Equity – Mental condition

Documentation

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

Applicant ’s DD Form 214 (Member 4) ( 8 copies )
Statement of Facts in Support of Application for Review of Discharge (4 pages)
Table of documents in support of application (3 copies )
Great Lakes Naval Hospital Report by Clinical Psychologist, K_ A. R_, Ph.D., dated       September 9, 2004 (6 pages) (8 copies)
Medical consultation report #1222-0131 by S_ J. S_, M.D., of Saint Joseph Health         Center made during the in-patient stay of LCpl S_ from December 20, 2004,        through December 24, 2004 (4 pages) (8 copies)
Fax from Osawatomie State Hospital to R_ D. D_, regarding Report of Mental Evaluation, dtd January 28, 2005 (3 pages) (8 copies)
Interim Report of Findings, from G_ W. S_, Ph.D., LCSW, dtd August 16, 2004 (2   pages) (8 copies)
Letter from G_ W. S_, Ph.D., LCSW to S_ D_, dtd August 16, 2004 (3 copies)
Affidavit of G_ W. S_, Ph.D., LCSW, dtd August 26, 2004 (2 pages) (8 copies)
Affidavit of G_ W. S_, Ph.D., LCSW, dtd August 27, 2004 (2 pages) (8 copies)
Letter from G_ W. S_, Ph.D., LCSW regarding diagnosis of S_ S_, dtd January 12,          2005 (2 pages) (8 copies)
Letter from R_ D. D_, dtd October 4, 2006 (2 pages)
Copy of Personal Receipt of Notification of Separation Proceedings, dtd July 22,         2004
Copy of Notification of Separation Proceedings, dtd July 22, 2004 (5 pages)
Copy of Acknowledgement Of Rights To Be Exercised Or Waived In Connection        With Discharge Proceedings (Board Case), dtd July 29, 2004
Copy of Unit Punishment Book, NAVMC 10132, dtd May 15, 2003
Copy of Administrative Remarks (1070)
Letter from J_ P. T_, dtd August 23, 2004 (13 pages) (6 copies)
Copy of Motion To Dismiss Administrative Separation Board ICO Lance Corporal     S_ A. S_ (SSN # deleted/3432 USMC), dtd August 27, 2004 (2 pages) (6 copies)
Copy of Objections to Approval of Administrative Separation Board ICO Lance Corporal S_ A. S_ (SSN # deleted/3432 USMC), dtd August 30, 2004 (3 pages) (6        copies)

The Applicant’s Representatives submitted additional documents to the Board on the day of the personal appearance hearing on 20070314. Several of these documents were copies of documents previously submitted and the number of copies of each document has been incorporated to the listing above. New documents submitted are listed as follows:

         Entry Of Appearance, signed by J_P. T_ and R_D. D_ on March 14, 2007
         Copy of Limited Power Of Attorney, dtd March 14, 2007
         Copy of Document, “NDRB Cases Referred To In Argument”, (6 pages)
         Copy of Slide Presentation, presented during the personal appearance hearing on                   March 14, 2007 (13 pages)
         Copy of letter, E. G. P_, Colonel, USMCR, dtd August 25, 2004 (5 copies)
         Copy of letter, E. G. P_, Brigadier General , USMCR, dtd October 14, 2004 (5              copies)
         Copies of twenty (20) pages of the Applicants medical records from the Great              Lakes Naval Hospital (5 copies)
         Copy of Involuntary Emergency Admission, Osawatomie State Hospital, dtd                   January 11, 2005 (2 pages) (5 copies)
         Copy of Ex Parte Emergency Custody Order, dtd January 13, 2005 (5 copies)
         Copy of Report of Findings by G_ W. S_, Ph.D., LCSW, dtd March 12, 2007 (8                pages) (5 copies)
         Copy of letter from P_ F. K_, MD to R_ D. D_, dtd March 1, 2006 (5 copies)
         Copy of letter from C_ G_, MD to R_ D_, dtd May 3, 2006 (5 copies)
Copies of thirty-one (31) pages of the Applicant’s medical record from                     Osawatomie State Hospital (5 copies)
Copy of Valeo Behavioral Health Care SPMI Criteria (not dated) (5 copies)
Copy of E-Sig Psych Report and Consultation Note from Research Psychiatric                Center, dtd July 29 -30, 2006 (5 copies)
Copy of Notice of Award, Social Security Administration, dtd May 12, 2006 (4              pages) (5 copies)
Copy of letter from P_ F. K_, MD, Midwest Psychiatric Consultants, dtd March 9,                   2007 (5 copies)

        

        
        









PART II - SUMMARY OF SERVICE

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

         Inactive: USMCR (DEP)    20010731 - 20020609       COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 20020610              Date of Discharge: 20041021

Length of Service (years, months, days):

Active: 0 2 0 4 12
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 1 9

Years Contracted: 4

Education Level: 12                                 AFQT: 76

Highest Rank: LCpl                                  MOS: 3451

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: NA*                                    Conduct: NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Letter of Appreciation (3)

*Not Available

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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 :

010730 :  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

030407:  Counseling: Advised of deficiencies in performance and conduct (Alcohol related incident involving operating a motor vehicle in a careless and imprudent manner and operating a motor vehicle in an intoxicated condition on 030405. Applicant aware of being scheduled for and required to attend a court appearance on 030528.) .

030515 :  NJP for violation of UCMJ, Article 111 : Drunken or reckless operation of a vehicle, aircraft, or vessel. In that Lance Corporal S_ A. S_ did operate his vehicle while intoxicated in a reckless manner on 030405.
         Award: R estriction for 45 days, reduction to E- 2 . Reduction suspended for 6 months. Not appealed.

030515:  Counseling: Advised of deficiencies in performance and conduct (Alcohol related incident and NJP involving operating a motor vehicle in careless and imprudent manner resulting in a collision with a parked tractor-trailer and driving while intoxicated with a BAC of .1779.), necessary corrective actions explained, sources of assistance provided, discharge warning issued.

030728:  Counseling: Advised of deficiencies in performance and conduct (On or about 030721 Applicant caught consuming alcohol under the legal age.), necessary corrective actions explained, sources of assistance provided, discharge warning issued.

030728 :  Suspension of r eduction in pay grade awarded at NJP on 030515 vaca ted due to a violation of Article 134, clause 3 of the UCMJ. This vacation is based upon the Applicant’s underage consumption of alcohol on 030721.

0407 2 2 :  Applicant notified of intended recommendation for discharge as under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse (cocaine) illegal, wrongful or improper use, possession, and distribution of a controlled substance, para 6210.5; possession of drug paraphernalia. The factual basis for this recommendation was (1) NJP for operation of a vehicle while intoxicated in a reckless manner on 030405. (2) Page 11 of 030728 for underage alcohol consumption. (3) Arrest Report/Offense - Incident Report for the possession of drug paraphernalia on 040522. (4) Report of positive urine sample Navy Drug Lab Message R 082030Z Jun 04. (5) Report of Findings, Crime Lab, Kansas City Police Dept, of 040602. (6) PFC J_ T. S_’s stmt of 040406. (7) UA from formation, 040713. Applicant informed the least favorable character of service possible was as under other than honorable conditions. [Extracted from supporting documents submitted by Applicant ’s attorney.]

040729 :  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board. Signed by the attorney only. [Extracted from supporting documents submitted by Applicant ’s attorney.]

040827:  Detailed Counsel for the Respondent (Applicant) letter to Administrative Separation Board. Subject: Motion to Dismiss Administrative Separation Board ICO Lance Corporal S_A.S _ ( SSN # deleted). The Detailed Counsel submits the motion to dismiss that portion of the pending administrative separation board relating to pattern of misconduct. [Extracted from supporting documents submitted by Applicant’s attorney.]

040830:  Counsel for Respondent (Applicant), memorandum to Convening Authority. Subject: Objections to Approval of Administrative Separation Board ICO Lance Corporal S_ A. S_ (SSN # deleted). The Applicant objects to the findings of the Administrative Separation Proceeding conducted 040827. Memorandum states that the Convening Authority should disapprove that portion of the pending administrative separation board relating to pattern of misconduct and reassess whether separation is warranted and, if so, the characterization of service. [Extracted from supporting documents submitted by Applicant’s attorney.]

040909:  Great Lakes Naval Hospital, Mental Health Clinic , Evaluation conducted by K_ A. R_, P h .D., ABPP, Clinical Psychologist.
         Reason for referral: This 21 year old, single, Caucasian male with approximately three years of active duty military service was self-referred stating that he believes that he has brain damage and he wants to evaluate the extent of it.
         Diagnosis:
         AXIS I: Mental Disorder not otherwise specified, alcohol dependence, in remission, rule out personality change due to head trauma, rule out amnesic disorder due to head trauma, mood disorder due to head trauma, rule out cognitive disorder not otherwise specified, rule out ADHD, rule out Bipolar disorder.
         AXIS II: R ule out p ersonality disorder, not otherwise specified .
         AXIS III: Pas t head injuries, current possibility of kidney cancer .
         AXIS IV: Recent discharge from military, physical trauma from head injury, past sexual trauma.
         AXIS V: 65
         Recommendations/conclusions:
         1. The p atient was given release of information forms for his medical records, father, and psychologist in town.
         2. An appointment was set up with psychiatrist, Dr. P_, for September 16 ^th at 1045.
         3. A neuropsychological evaluation is recommended.
         4. All of the above was explained to the pt and he indicated an understanding.
         5. The p a t ient was given this provider’s number if he had further questions. [Extracted from supporting documents submitted by Applicant ’s attorney.]

04100 4 :  Substance Abuse Rehabilitation Program consultation record by M_ M_ , P h.D.
         Chief Complaint: Regarding problems, the patient had said he is not sure why command sent him for a drug/alcohol screening.
         Substance abuse: Recurrent substance use causing a failure to fulfill obligations at work, school or home, as evidenced by: Patient denies.
         Recurrent substance use in hazardous situations: Patient denies currently. Patient reports a DUI in February (?) 2003 with a BAC of .22 and being stopped but not charged by police later in same year, prior to treatment.
         Mental health problems and treatment (including substance abuse treatment): Patient is currently being seen by Mental Health. Patient reports 30 days of inpatient treatment from 031128 to 031230. He also reports attending AA meetings on a daily basis and having a sponsor back in Kansas City.
         Diagnoses:
         AXIS I: Alcohol dependence in early full remission.
         AXIS II: Deferred.
         AXIS III: ________
         AXIS IV: Se Mental Health reports
         AXIS V: GAF = 65 (current)
         Recommendations:
         Patient reports no ETOH or ETOH problems since Nov 03. Treatment is not currently indicated. Patient is aware of continuing care options available (e.g. AA) and should utilize these as much as possible.

041019 :  GCMCA, Commanding General, Marine Corps Mobilization Command , directed the Applicant 's discharge under other than honorable conditions by reason of misconduct - drug abuse.

Service Record Book contains a partial Administrative Discharge package.
Service Record was missing elements of the Summary of Service.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041021 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable ( C and D ). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package ( E ).

Propriety – Due Process: The Applicant ’s representatives contend that his discharge is improper because he was denied a request for a continuance to allow the Applicant to develop and present evidence of his mental health issues to the Administrative Separation Board.

On 20040722 the Applicant was notified that the Commander, Marine Corps Mobilization Command intended to recommend to that the Applicant be discharged by reason of misconduct, with a specific basis of pattern of misconduct and drug abuse. On 20040823 the Applicant’s counsel submitted a request for a continuance for the Applicant’s administrative separation board. According to the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), paragraph 6315.2.a. the president of an administrative separation board may grant a continuance. In a letter dated 20040825, the separation authority notified the Applicant’s attorney’s, that the request for continuance had been denied. The administrative separation board was conducted on 20040827 and on 20041019, the Commanding General, Marine Corps Mobilization Command, directed that the Applicant was to be discharged with a characterization of under other than honorable by reason of misconduct – drug abuse. The Applicant was afforded the appropriate due process during the processing of his case. There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge. Relief denied.

Equity – Mental conditio n: The Applicant ’s representatives request consideration of the Applicant’s mental health issues as a factor in mitigation of the alleged misconduct in regards to the characterization of his discharge.

The Applicant was notified of the intent to administratively discharge him on 20040722. The Applicant appeared before an administrative separation board on 20040827. Subsequent to the administrative discharge board the Applicant was evaluated by competent medical authorities beginning on 20040909. 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 and that his evidence of a post-service diagnosis of Bipolar Disorder and Personality Disorder was found not to mitigate the conduct for which he was discharged. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

W hen the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. 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 several instances of misconduct. On 20030515 the Applicant was awarded nonjudicial punishment for violation of Article 111 (drunken driving) of the UCMJ. On that same day the Applicant received a retention warning, which he violated with subsequent misconduct (underage drinking) on 20030721. Per the MARCORSEPMAN paragraph 6210.3.a, a pattern of misconduct is established with two incidents occurring within one enlistment. Further, the misconduct does not have to be the subject of NJP, as was the case with the Applicant’s incident of underage drinking. The Applicant was counseled and given a retention warning, which he violated on 20040522 with violations of UCMJ Article 112a (wrongful use, possession, etc. of controlled substances). 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. Violations of Article 111 and 112a are considered serious offenses, for which a punitive discharge is authorized if adjudged by a special or general court-martial. In the Applicant’s case, charges were initially preferred to court-martial but were subsequently withdrawn and the Applicant’s command initiated the administrative separation process. Per the MARCORSEPMAN paragraph 6302.1, Marines must be processed for all reasons for which the minimum criteria are met, therefore the Applicant was processed on the basis of misconduct, pattern of misconduct and drug abuse. On 20041019, the separation authority, acting within his authority per the MARCORSEPMAN paragraph 6302, directed that the Applicant be discharged by reason of misconduct – drug abuse with a characterization of under other than honorable conditions. 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. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The following is provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.









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, Articles 111 (drunken driving) and 112a (wrongful use, possession, etc., of controlled substances).

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 .

E . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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