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

ex-Pvt, USMC
Docket No. MD01-00255

Applicant’s Request

The application for discharge review, received 001228, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to medical.  The applicant requested a documentary record discharge review.  The applicant did not designate a representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010601.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned both impropriety and inequity in the characterization of the applicant’s service.  The Board’s vote was four to one that the character of the discharge shall be changed to:  HONORABLE/SECRETARIAL AUTHORITY, authority: MARCORSEPMAN 6214, SPD code, JFF1.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I served on active duty for 2 years in the U.S. Marine Corps.  I was diagnosed with bipolar disorder while on active duty.  My discharge was under other than honorable conditions due to misconduct.  It is my belief that my "misconduct" was in fact a manifestation of my bipolar disorder and that I should have been discharged for medical reasons.  I had no history of bipolar disorder prior to the behavior problems identified in my military records.  I am attaching a copy of my DD Form 214, a letter for the Department of the navy and a copy of DD Form 149 completed 11/6/00.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation

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

BCNR's letter to the Applicant dtd Dec 4, 2000
Copy of DD Form 214
Applicant's application (DD149) to BCNR dtd Nov 6, 2000
Dept of VA, St Tammany Paris Serv Office ltr dtd Jan 17, 2001 with a 5 page medical summary from Tripler Army Hospital

In addition to the documents submitted by the applicant, the following document was considered:
Memorandum dtd May 16, 2001 forwarding psychiatric opinion based on review of applicant’s medical records, to NDRB Executive Secretary from CAPT N. S. Howard, MC, USN, Medical Advisor to the Director, NCPB

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		971025 - 980719	COG

Period of Service Under Review:

Date of Enlistment:  980720		Date of Discharge:  000616

Length of Service (years, months, days):

	Active:    01  10  27 (Doesn't exclude confinement time)
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  34

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.01 (7)			Conduct:  3.91 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None 

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:

971024:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

990614:	Orthopedic Clinic, Tripler Army Med Cen:  19 year old male with right knee effusion, intermittent locking/popping after playing football Jan 99.  Pt had a significant injury to right knee two years before active duty.  PE: possible effusion, possible apley's gind, negative Mcmurrays but has pain at lateral joint line, possible ttp at lateral joint line, noted decrease size of right guard femoris as compared to left.  Pt pending physical therapy appointment.  Provisional Diagnosis:  Right lateral meniscus tear.
	IMPRESSION:  Right knee ACL deficiency.
	PLAN:  After discussion with pt and further exploration of history, he has been seen I Physical Therapy at K-Bay.  He has had several episodes of major instability while attempting to do sports.  …Knee ACL reconstruction, ...to continue his preoperative ACL rehabilitation and will schedule….for an ACL reconstruction.

991110:	NJP for violation of UCMJ, Article 92: failure to obey order or regulation by wrongfully wearing a tongue ring at H&S Co., 3d Bn 3d MAR on or about 1000, 990819, violating MCO P1020.34F.
Awarded forfeiture of $260.00 per month for 1 month, restriction and 
extra duties for 14 days.  Not appealed.

991115:	Tripler Army Med Cen, Orthopedic Clinic:  Preop ACL reconstruction for 16 NOV 99.

991116:	Surgery scheduled at Tripler Army Med Cen.  Failed to show.

991221:	NAVDRUGLAB San Diego reported applicant’s urine sample, received 991209, tested positive for marijuana.

000107:	Pearl Harbor Mental Health Clinic:  Mbr referred for psychological eval due to concerns regarding "odd beliefs" and association with "raves".  Mbr's urinalysis was positive for marijuana and mbr questioned regarding his weekend activities.  Mbr informed command of his involvement with rave, and during this time, mbr spoke about his beliefs regarding telepathy and other supernatural powers.  His command became concerned about this and referred him to medical/mental health.  Mbr indicated that he had recently been "promoted" in his organization (RAVES) and that he has been told by a higher council mbr tht he is now a "messenger".  Although he was never told verbally the duties of a "messenger", he "felt" that he needed to talk bout Raves and let others know of this "secret underground movement".  ...Mbr indicated that he has several friends in the Marine Corps who are associated h this organization and that they are not allowed to talk about their activities and spiritual beliefs.  Mbr admitted that one of the routine activities they do in their get-togethers is to use marijuana.  He indicated other substances were also used, but declined to discuss this further.  Mbr regrets "popping positive", but did not report remorse about having used marijuana which led to positive urinalysis.  Mbr indicated that he had been part of the Raves prior to joining the USMC…In summary, this mbr presents with odd beliefs an practices, but does not present with symptoms indicative of a psychotic disorder.  His recent period of staying up at night and experiencing a "spiritual high"…do not indicate a manic or hypomanic episode.  
	DIAGNOSIS:  AXIS I:  Cannabis Abuse, occupational Problem
	AXIS II:  Schizotypal Personality Traits
	AXIS III:  None Known
	RECOMMENDATION:  1 - Mbr is psychiatrically fit for full duty, suitable for retention and is responsible for his actions.
	2 - Mbr does not desire further follow up or intervention.  Mbr has been informed to contact his provided/department, as needed.
	3 - Suicidal risk is considered low, with no ideation, intent, plan or history of gestures or attempts.
	4 - Mbr's command should continue with disciplinary action regarding member's illicit substance use.
	5 - Recommendations discussed with mbr who understands and agrees.
	6 - Recommendations discussed with mbr's BAS doctor.

000203:	Navy Drug Screening Lab, San Diego, CA certified the lab results.

000306:	SACO Screening Report:  Recommend member be processed for administrative separation for illicit drug use.  

000324:	Summary Court-Martial
	Charge I:  violation of the UCMJ, Article 86, 2 Specifications
	Specification 1:  Absent without leave on or about 0625, 000206.
	Specification 2:  Absent without leave during the period 000201 through 00203.
	Charge II: violation of the UCMJ, Article 112a:
	Specification:  Wrongful us of marijuana on or about 991116
	Findings:  to Charge I and specifications 1 and 2 thereunder, guilty.
	To Charge II and specification thereunder, guilty.
	Sentence:  Confinement for 30 days, reduction to E-1 and forfeiture of $500 pay per month for 1 month.
	CA 0000327:  Sentence approved and order executed.  The accused will be credited with 30 days pre-trail confinement against the sentence to confinement.  Navy Brig, Ford Island, Pearl Harbor is designated as place of confinement.
	Judge Advocate Review, 000418:  Sentence is legal.

000517:	Applicant advised of his Veterans Administration Rights as they pertain to Alcohol and Drug Treatment in conjunction with admin separation for active.  Member does not rate VA treatment in conjunction with discharge.  Applicant elected not to request VA treatment in conjunction with discharge.

000527:	Psychiatry ER, Tripler AMC:  Chief Complaint - "They brought me in here for no reason."  22 year old USMC private was brought in to Tripler E.. in restraints after being picked up wandering around on base.  Per report of MP escort, pt was found by CID when he was loitering.  He did not seem to be making very much sense so they decided to take him to Tripler for further evaluation.  Pt ran and had to be captured on foot.  He then required restraint before being transferred to Tripler for further evaluation.  Pt had two arguments the night before with his girlfriend.  Pt denies any physical blows were exchanged.  MP escort was unaware of any violence, either.  Pt says that he got upset and went out to buy some beer.  He then "drank a lot" and used marijuana and cocaine.  Unable to tell me how much that he drank or how much drugs that he used except that he thought he used about 1g of cocaine which he snorted.  Pt denies any more than mild, transient depressed mood… describes his mood as being more upset at times than depressed.  Is being separated from the military for drug use.  Does not desire separation.  Says that he has a learning disability.
	IMPRESSION:  This pt presents with signs and symptoms of marijuana intoxication.  Gives no history suggestive of suicidal or violent thoughts nor does his escort or command give such history.  Pt does not want admission to hospital nor think it is indicated as pt does not appear to be an eminent treat to self or others.  Unsure why cocaine was not positive on UDS.  Perhaps in his intoxication, pt became confused about drugs he actually took. 
	AXIS I:  Marijuana Abuse.  R/O marijuana dependence.  R/O Alcohol Abuse vs. Dependence.  Marijuana Disorder NOS.  R/O Learning Disorder NOS.
	AXIS II:  Deferred.
	AXIS III:  None
	AXIS IV:  Severe with arguments with girlfriend, pending disciplinary action for events of last 24 hours, pending discharge from the military.
	AXIS V:  30 - 40
	PLAN:  1 - Agree with command's decision to place pt on continuous watch until he can see Mental Health on Tuesday, 30 MAY00.  Watch is not for imminent threat to self or others but rather to prevent him from going out to use substances again and to make unadvisable decisions.
	2 - Follow up at K-Bay Mental Health on 30 May 00.
	3 - Follow up with SAC for substance use.
	4 - Follow up with medical clinic for routine follow-up of urinalysis which showed increased protein, ketones, and some blood.
	5 - Return to TAMC if behavior becomes unmanageable or as needed.

000527:	Admitted to Tripler AMC.  Mental Health Clinic:  21 year old Marine E-2 who presented to TAMC ED.  Pt chief compliant of being "Touched in the Wrong Way".  Pt's command brought him to TAMC ED.  Admitted after being brought to TAMC ED for "Bizarre "Behavior", "Walking around in a disorganized, directionless way", and for writing in his palm "People are trying to kill me".  According to his Mother who has been in contact with him, the pt started to act in a strange manner starting up to two months ago.  At that time he related to his Mother several out of character activities to include "Being a leader and teaching others about "P.L.U." (Peace Love Unity), suddenly joining a poetry group, and joining what his Mother describes as a "cult" as well as not sleeping for four consecutive days with no apparent explanation for doing so.  While in the ED the Pt reported to using cocaine but UDS samples failed to confirm this.  However, the UDS did show positive marijuana in his urine.  Pt was taken to ward 4B2 for further evaluation.
	DIAGNOSIS:  AXIS I:  Bipolar Disorder Type I
	AXIS II:  None
	AXIS III:  None
	AXIS IV:  Severe secondary to AXIS I, pending admin separation 
	AXIS V:  20 on admission, 30 currently

000602:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by wrongful use of marijuana, as supported by a summary court-martial on 000324.

000602:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

000602:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation is based on applicant's wrongful use of marijuana. 

000608:	SJA review determined the case sufficient in law and fact.

000610:	GCMCA [CG, MCB Hawaii] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000612:	Discharged from the Tripler AMC, HI.  (Amended Comments) Condition on discharge:  Pt stable, no suicidal/homicidal ideation, no AH/VH.  Pt to obtain copies of all material of inpatient stay and present to VA in New Orleans.  Medications (depakote, haldol, cogentin) have been written for with three months supply.  Obtain civilian psychiatrist for follow up for renewal of meds and further evaluation of current status and diagnosis.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000616 under other than honorable conditions for misconduct due to drug abuse (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was neither proper nor equitable (D and E).

In reviewing the record, the Board noted both the applicant’s enlistment waiver for pre-service drug use, and his signature dated 971024 certifying his understanding of the Marine Corps policy on the illegal use of drugs.  His conviction at a Summary Court-Martial on 000324 for violation of Article 112a of the UCMJ following a positive urinalysis for marijuana (THC) was proper and appropriate.  Relief will not be granted on this basis.

In considering the applicant’s request for relief based upon his diagnosed bipolar disorder Type 1 manic/psychosis, the Board found the applicant’s pre-service “RAVE” group experience evidence of predisposing psychological vulnerability (prodrome/schizotypal traits).  The record describes a deterioration of the applicant’s mental status over a period of about six months prior to discharge, with increasingly bizarre behavior and command-referred psychiatric examinations.  The culmination of the applicant’s mental state was his admission to Tripler Army Medical Center (TAMC) psychiatric ward on 000527, diagnosis of severe bipolar disorder and treatment with potent psychoactive drugs prior to his release to his mother’s care and recommendation for immediate civilian psychiatric care.  This on-going care at Lurline Smith Mental Health Clinic in Mandeville, LA is well documented.

The Board noted with surprise that the command processed the applicant for separation under other than honorable conditions during the period of time he was an in-patient in TAMC psychiatric ward being treated with several powerful psychopharmacological drugs.  The Board noted the applicant waived his rights while diagnosed as impaired to make decisions and think logically.  T  he Board found his discharge process improper,  rushed, and inequitable, taking into account the applicant’s mental status.  The Board notes qualified Naval medical authority comment by N.S. Howard, CAPT (MC), USN, Medical Advisor to the Director, NCPB, following a review of the case that the underlying psychological vulnerability/predisposition would constitute a mitigating circumstance with respect to the applicant’s cannabis use whenever it occurred.  The Board, in a four to one decision, agrees with the applicant that his misconduct was a manifestation of his bipolar disorder, and not willful misconduct with deliberate intent to violate the orders and regulations that govern good conduct in Naval service.

Therefore, the Board grants full relief and directs the characterization of the discharge be changed to HONORABLE by reason of Secretarial Authority.  The Board wishes the applicant well in his recovery.

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 Present. 

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023