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

 ex-PFC, USMC  
Docket No. MD03-00944

Applicant’s Request

The application for discharge review was received on 20030502.  The Applicant requests the 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 list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040401.  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/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “After being released from Walter Reed Medical Center I was informed by my company C.O. (W.O. C_) that my medical diagnosis and request for discharge was denied by him.  At that time I was prescribed an antidepressant, trezadone, which had a severe side effect on my physical performance.” Five months later, (April), several other Marines and myself were questioned for the use of cannabis Sativa.  I was truthful about experimenting with this drug, but I did not receive an NJP until the month of August.  I never failed a urine exam.  Meanwhile correction and military police were failing urinalysis and receiving slaps on the wrist.  After serving out my 60 days of restriction.  I was released two days later (Nov. 11, 1998).  I still had the option to continue active duty.”

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

2.  “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 the evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable to that of Honorable.

The FSM served on active service from September 3, 1996 to November 20, 1998 at which time he was discharged due to Misconduct.

As the FSM has not submitted any documentation in support of his claim, we as the representative, 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 5420.174C.

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,”

Documentation

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

Applicant’s DD Form 214 (Member 1) (3)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		950816 - 960825	COG

Period of Service Under Review:

Date of Enlistment:  960826		Date of Discharge:  981120

Length of Service (years, months, days):

	Active:    02  02  25
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  55

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (6)			Conduct:  4.2 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  8

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:

950815:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

970923:	Naval Medical Clinic, Mental Health Department: Diagnoses: Adjustment disorder with depressed mood.

971024:	Applicant to Walter Reed Army Medical Center.

971030:	Applicant released from Walter Reed Army Medical Center following psychiatric evaluation.  Diagnoses: adjustment disorder with depressed mood, and a personality disorder with borderline and histrionic traits.

971118:	Counseled for deficiencies in performance and conduct.  [Suicidal tendencies and ideation’s which led to your hospitalization from 971024 to 971031.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980514:	Naval Medical Clinic, Mental Health Department: Diagnoses: Axis I: Adjustment disorder with disturbance of emotions and conduct, cannabis abuse.  Axis II: Personality disorder, not otherwise specified (borderline features).

980518:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 0730, 980430 to 1845, 980508 (8 days/surrendered).
Awarded restriction for 15 days.  Not appealed.

980827:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement, marijuana usage identified through my voluntary statement to the Criminal Investigation Division.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980828:	CSACC evaluation: Impression: Alcohol dependence.  Cannabis abuse.

980902:	NJP for violation of UCMJ, Article 112A:
Specification: Wrongfully used marijuana during April 1998.
Awarded forfeiture of $514.00 per month for 2 months, restriction for 60 days, reduction to PFC.  Not appealed.

981015:	Applicant evaluated by a medical officer and diagnosed as being alcohol and drug dependent.  Applicant refused treatment in conjunction with discharge.

981019:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

981019:	Applicant advised of rights and having elected not to consult 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.

981026:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was wrongful use of marijuana, a controlled substance.  

981030:	SJA review determined the case sufficient in law and fact.

981106:	GCMCA [Commanding General, Marine Corps Base, Quantico, VA] directed the Applicant's discharge 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 19981120 under other than honorable conditions for misconduct due to drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issues 1 and 2.  There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Additionally, 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 the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 31 Jan 97 until 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