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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-00664

Applicant’s Request

The application for discharge review was received on 20050304.  The Applicant requests the 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 hearing discharge review before the Board in the Washington, D.C Metropolitan area.  The Applicant listed Disabled American Veterans as her representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that she was only eligible for a personal appearance hearing because she had a Naval Discharge Review Board (NDRB) documentary record discharge review on 20040628. The Applicant was accepted for a personal appearance hearing.  

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20051012.  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

Issues submitted by Applicant’s representative (Disabled American Veterans) at the time of the personal appearance hearing:

“Issue1.  Change of characterization to General Under Honorable Conditions based on in-service events not considered at Administrative discharge, that caused the use of poor judgement and lead to the current history of events and the undesirable discharge.

Issue 2.  Change of characterization to General Under Honorable Conditions based on post-service character.”

Documentation

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

Copy of BIRLS Veteran Identification Inquiry dated February 10, 2005
DAV Cover Letter dated February 16, 2005
Certificate of Completion, coursework for Microsoft Office I, December 14, 2004
Letter from B_ B_, verifying employment, September 29, 2005
Letter from S_D_S_, verifying employment, September 29, 2005

Additional documentation provided by the Applicant on October 26, 2005 and considered by the Board:

       Letter from E_ W. G_, dtd October 16, 2005
       Letter from T_ F_, (4 pages) dtd October 23, 2005
       Copy of email from B_ S_, (2 pages) dtd October 21, 2005 

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR (DEP)		950919 - 960908	COG

Period of Service Under Review:

Date of Enlistment:  960909		Date of Discharge:  981217

Length of Service (years, months, days):

	Active:    02  03  09
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  43

Highest Rank:  LCpl			MOS:  3381

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (5)			Conduct:  4.2 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, RMB

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:

950918:	Initial enlistment contract documents admission of pre-service marijuana experimentation.  Enlistment waiver was granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

970916:	Limited Duty Medical Board Report.  Applicant diagnosed with possible laryngeal dyskinsesia.  Awaiting equipment to perform diagnostic test. 
	Limitations:  No unit PT, no PFT, no deployments.

970917:	Commanding Officer, U.S. Naval Hospital, Okinawa submits findings of Limited Duty Board Proceedings for Applicant to Commanding Officer, 7th Communications Battalion.  A limited duty board was convened on the Applicant.  The limited duty board recommended the following limitations: no unit PT, PFT, or deployments.

970925:	Counseled for deficiencies in performance and conduct.  [Failing the BST test twice.]  Necessary corrective actions explained, disciplinary and discharge warning issued.

971008:	Applicant referred to psychiatric consultation.  Reason for request: “SNM age 19 presents initially 3 Sept 97 following referral for counseling after sexual assault.  Demeanor consistently quiet and reserved during 3 subsequent sessions.  4th session held 7 Oct 97.  Presented with marked deterioration in mood/affect- much more quiet and reserved, eye contact poor, reporting decreased social activities and increased sleeping.  Reports history of depression from age 15 and medication for this through age 16.  Reporting increased feelings of anger and violent behavior, including threatening peers with knives.  Denies suicidal.”
	Provisional Diagnosis:  Depression.

971014:	Psychiatric Consultation.  Applicant denies problem with mood, does admit to instability and temper.
	Diagnosis: Axis I: No diagnosis.
	Axis II:  Antisocial traits.
	Axis IV:  On LIMDU Board for possible laryngeal spasms (not asthma).
	Recommendation:  Fit for duty.  Not suicidal/homicidal and does not want any follow-up.  Responsible for actions including misconduct, assaultive behavior of her own. 

980213:	Applicant completed 5 days of Alcohol Impact.  Applicant was a self-referral for education.  Applicant stated that she had “a weekend of heavy drinking”.

980520:	NAVDRUGLAB JACKSONVILLE FL message 202213Z MAY 98, reported Applicant’s urine sample, received 980513, tested positive for THC.

980817:	NATNAVMEDCEN Bethesda MD Behavioral Healthcare Clinic.  Applicant referred after physician noted a history of psychiatric evaluation and IMPACT (for abusive drinking).  Applicant denied any suicidal or homicidal intent. 
	Axis I:  Alcohol Abuse - Provisional (Patient acknowledged getting drunk several times since attending IMPACT).

980819:	NATNAVMEDCEN BETHESDA MD message 191846Z AUG 98 to CMC Washington DC (MMSR-4).  Recommends Applicant for Physical Evaluation Board effective 980807.

980914:	Applicant’s Final Physical.  Applicant states: “In May 1998 while on leave got arrested and used marijuana.”

981020:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 112a.
	Specification: Did on or about 980409 and 980508, wrongfully use marijuana.
	Finding:  to Charge the specification and I thereunder, guilty.
	Sentence:  Forfeiture of 2/3 pay per month for 1 month, reduced to E-1, 60 days restrictions.
	CA action 981021:  Sentence approved and ordered executed.

981117:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NAVDRUGLAB JACKSONVILLE FL message 202213Z MAY 98.

981117:	Applicant advised of rights and having elected to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

Not Dated:	Commanding Officer, Headquarters and Headquarters Squadron, MCAS Cherry Point, NC, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was the Applicant’s in service drug use.  

981124:	Director, Substance Abuse Counseling Center, MCAS Cherry Point, NC determined that the Applicant did not to meet DSM IV criteria for cannabis /alcohol abuse or dependence.   

981203:	The President, Physical Evaluation Board (PEB), Department of the Navy, Naval Council of Personnel Boards, submits “NOTIFICATION OF DECISION” to the Commandant of the Marine Corps.  The President, PEB, acting for the Secretary of the Navy, considered the Applicant’s physical condition as referred by a medical board to determine fitness for duty.
	Finding:  No finding shall be recorded.
	Reason: Case terminated.

981203:	SJA review determined the case sufficient in law and fact.

981203:	GCMCA, Commanding General, Marine Corps Air Station, Cherry Point, NC, notified CMC (MMSB) that the Applicant will be separated per paragraph 6210.5 of the reference under other than honorable conditions by reason of misconduct due to drug abuse.

040628:	NDRB documentary record review Docket Number MD04-00165 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981217 by reason of misconduct due to drug abuse with a characterization of under other than honorable conditions (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).

The Applicant testified that she was traumatized as a result of sexual assault and that the lasting effects of this trauma were the catalyst for her poor judgment and subsequent wrongful use of marijuana.  Following the sexual assault, the Applicant was examined by a medical officer and was found to be fit for duty and responsible for her actions, to include misconduct.  Sexual assault is not a justification nor a defense for the Applicant’s own misconduct approximately 10 months later.  The record clearly reflects her willful misconduct and demonstrated that she was unfit for further service.  The Applicant entered the service with a waiver for having used marijuana. While on active duty the Applicant admitted to using marijuana and she was subsequently found to be positive for THC on a urinalysis.  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 her conduct or that she should not be held accountable for her actions.  Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant provided two letters verifying employment and a certificate of completion of computer skills training as documentation of her post-service.  The Applicant was given 2 weeks from the date of the personal appearance hearing to provide additional documentation of her post service and she provided three letters of character reference.  The Applicant testified that she had been arrested for marijuana possession during 2004, that she had used marijuana approximately three weeks prior to the personal appearance hearing, and that she had performed no community service.  The Applicant’s statements concerning her post-service conduct were found not to mitigate the offense for which she was discharged.  Relief denied.  

The following is provided for the edification of the Applicant.  The Applicant has exhausted her 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 she desires further review of her case.

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 31 August 2001. 

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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.

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