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

  ex-Pvt, USMC
Docket No. MD03-01299

Applicant’s Request

The application for discharge review was received on 20030729.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant selected the Disabled American Veterans as his representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040514.  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.  “Ladies and Gentlemen of the Navel Council of Personnel Boards,

I am contacting you in regards to an administrative separation from the United Stated Marine Corps on July 31, 2002. 1 was the subject of a Battalion Non judicial Punishment proceeding held on November 19, 2001. I was charged with violation of Article 112a. I am submitting this application for the review of Discharge or Dismissal from the Armed Forces of the United States, because I was falsely accused of violation of Article 112a.  I was discharged with an OTH (Other Than Honorable) conditions. (Encl 1.)

I underwent surgery on my right knee on September 19, 2001. Subsequently, after this surgery I was prescribed medication to relieve the pain and lessen the swelling. I was prescribed the drug: Percocet- (Oxycodone 5MG/Acetaminophen 325MG) qty 40 (encl 2.). I returned from 30 days convalescent leave on October 20, 2001 and took a urinalysis test on October 23, 2001. At the time of the urinalysis I was taking the medication. When I signed the urinalysis logbook, I wrote “check medical records” where it stated “Drugs currently taking. “(Encl 3.) I wrote this because I was unsure of the actual name of the drug at the time and 1 believed that it was in my medical records.

I was mistaken about this medication being documented in my military record. Tricare, the healthcare provider, had referred me to a civilian doctor at UNC Chapel Hill. Ladies and Gentlemen of the board the results of the urinalysis test (Encl 4.) came back and it stated that I was 4% over the limit. In which I had NG/ML of THC at 19% instead of 15%, which is the limit that you can have in your system, and be at no fault. I feel my punishment was unjust and undeserved.

Before being charged, I was notified and recommended to see a lawyer from base legal. During the discussion of my case the lawyer told me to accept the NJP, because if I did not I could be charged with a felony and receive up to six months in the Brig. Since the lawyer said this over and over after every statement that I made to prove my innocence or to help my case and me having a former NJP for weight control which demoted me from an E-3 to E-2 after numerous attempts to lose weight and being on remedial for [one and a half]  years and thinking that I would get judged by presentation of my appearance instead of the characterization and achivements of my military career, which are (Certificate of Good Conduct, Meritorious Mast, and (2) Certificates of Commendation.) (Encl 5.) I chose to take the NJP.

My punishment was reduction in rank from E-2 to E-1 and half of my pay for 2 months, 45 days of being restricted to base and waiting upon the Commanding Generals final decision, which was an administrative separation. While on restriction I went back to my Battalion Administrative Legal Section to see what could I do to make this wrong right. I was advised to go on a separation board, which I did. Although the Commanding General made the final decision he found me guilty. Before the board took place my lawyer presented me with a Conditional waiver of the Administrative Discharge Board (Encl 6.) which would have given me a discharge of no less that a general (under honorable conditions) characterization of service. Even though I knew this discharge would be better that an OTH or BCD it was not honorable which I deserved. So I turned it down because I knew that I was innocent of this charge.

After all was said and done, the Marine Corps were going to discharge me on August 1, 2002 one year after my original EAS date of September 23, 2001. no matter what. Even though I was extended on a medical board for a medical discharge for my right knee. (Encl 7.)

While waiting to be discharged after being released from base restriction, several months past. It was the 4th of July’s 96 (96 hours off for the holiday), the evening of being dismissed from formation for reporting to work the next day, I was shot defending a domestic citizen’s life (Line of Duty/Misconduct Investigation Report) (Encl 8). I was admitted to Onslow Memorial Hospital, suffering from gun shot wounds to the left side of my body. I was in intensive care for the first 24 hours and then was released to a room for 72 hours. Then I was released from my doctors care to go back to work. Upon arriving back to work I was put on light duty for seven days. Going to the navel hospital aboard Camp Lejuene, NC I received no medical attention because I was in the process of being discharged. I had no housing because base housing would not give me housing because I was being discharged. My wife and I were homeless because our home was a crime scene for Jacksonville Police Department of North Carolina.

After all of this, I was discharged from the United States Marine Corp with a dysfunctional arm that had nerve damage, (Encl 9.) which will never be fully operational because I did not receive the proper medical attention and my right knee from past surgery that will never be fully operational. I believed the Marine Corps when they said that they take care me. The only thing that I am asking for is that the Navel Council of Personnel Board to take care of this wrongful discharge.”

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 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 (OTH) discharge to that of Honorable.

The FSM served on active service from September 23, 1997 to July 31, 2002 at which time he was discharged due to Misconduct. 

The FSM contends the current discharge is improper because he was on a prescribed medication (Percocet) at the time of the Urinalysis Test, due to a recent knee surgery.  This information is available for review in the record.  The FSM maintains that the Board never gave consideration to the fact that he was on a prescribed medication, a narcotic which would exhibit the same chemicals in the urine or blood as illegal drugs, and submits this application for a fair determination.

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 (c), Par. (f) (1).

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 5420.174C.

Under the premises of equitable relief, we believe the Board can change the current discharge to reflect an Honorable discharge we leave that to a determination by the Board.

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.”

Documentation

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

Applicant’s DD Form 214
Ten pages from Applicant’s medical record
Twelve pages from Applicant’s service record
Photo
Copy of Social Security card and Driver’s License
Contact information

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		970204 - 970922	COG

Period of Service Under Review:

Date of Enlistment:  970923		Date of Discharge:  020731

Length of Service (years, months, days):

	Active:    04  10  09
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  33

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (14)			Conduct:  3.9 (14)

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, CC (4), MM, NDSM

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:

970125:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

001002:	Counseled for deficiencies in performance and conduct.  [Not eligible for promotion while not within height and weight standards.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010815:	Limited Duty Board extended Applicant’s EAS for 8 months.  CMC reassigned his EAS to 020801.

011031:	NAVDRUGLAB [Jacksonville, FL], reported Applicant’s urine sample, received 011026, tested positive for THC.

011119:	NJP for violation of UCMJ, Article 112a:  Tested positive for THC.
Awarded forfeiture of $521.00 per month for 2 months, restriction for 60 days.  Not appealed.

020306:	Counseled for deficiencies in performance and conduct.  [Poor judgment and use of an illegal substance.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020419:	Completed IMPACT program at the ATF.

020514:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis.

020520:	Applicant advised of rights and having declined to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

020605:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  

020702:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, recommended discharge under other than honorable conditions, and recommended that the discharge be suspended.

020723:	SJA review determined the case sufficient in law and fact.

020723:	GCMCA [CG, 2d FSSG] 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 20020731 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.  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 discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  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