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

FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD05-01383

Applicant’s Request

The application for discharge review was received on 20050815.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant designated a private representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060504.  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 by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached document/letter to the Board:

“Issue 1.  (Impropriety) The notification of administrative separation by reason of misconduct due to drug abuse based on wrongful use of Amitriptyline to Applicant was improper since Applicant had valid medical prescriptions for the non-controlled medication.  The grounds of processing failed to meet the separation processing elements of paragraph 6210.5 of MARCORSEPMAN, constituting prejudicial error.

Issue 2.  (Impropriety) The notification of administrative separation by reason of misconduct due to drug abuse was improper due to no evidence indicated wrongful drug use by applicant and her subsequent non-judicial punishment (NJP) was not based on wrongful use of drugs, constituting prejudicial error.

Issue 3.  (Impropriety) At NJP, Applicant was charged with an act that was not an offense under the UCMJ.  The Article 92 charge against Applicant for violating SECNAVINST 5300.28C was for conduct not amounting to punitive acts in violation of a lawful general order.  The charge was improper and constitutes prejudicial error.

Issue 4.  (Impropriety) The SJA (Legal) Review of Applicant’s case is defective, to include issues such as failure to note errors in the NJP charges and discrepancies between the NJP charges with the basis of administration separation.

Issue 5.  (Impropriety) Applicant was notified that her administrative separation was based on drug use of a prescription medication.  However, the SJA (Legal) Review to the Convening Authority recommended separation based on drug distribution, considered a significantly more egregious drug offense, and Applicant was not informed of the change and/or basis of her discharge, constituting prejudicial error.

Issue 6.  (Equity) The applicant’s final evaluation marks and recommendation for reenlistment reflect that her overall military service was satisfactory and consistent with a discharge under Honorable conditions.

Issue 7.  (Equity) The applicant’s record contained uncorroborated drug abuse charges which adversely marred her quality of service and resulted in the cancellation of her medical board/physical disability discharge, initiated prior to the charges for a service-connected injury.

Issue 8.  (Equity) Post-service conduct.  Pursuant to 10 USC 874(b) and in accordance with SECNAVINST 5420.1740, enclosure (1), paragraph 2.24 and 9.3, the applicant requests the Board’s consideration of the above matters and her medical condition to substantiate the requested discharge upgrade.”

Additional remarks provided in attached letter/document:

“I. STATEMENT OF FACTS

Applicant entered the Marine Corps in August 2002, at the age of 20.  She reported to boot camp and in September 2002, sustained a fall during training on the slide for life/obstacle course, resulting in a close head injury.  The injury was diagnosed as a concussion with loss of consciousness (LOC).  Applicant experienced repeated LOC and migraine episodes; however, managed to graduate from boot camp in November 2002.  She reported to the 9th Engineer Support Battalion, 3rd Force Support Service Group, Okinawa, Japan in March 2003.  Applicant continued to experience LOC and severe migraines, leading to treatment under the staff neurologist for post-concussive syndrome and migraine syncope.  She was treated with medication and placed on limited duty.  After requiring medical evacuation to Naval Medical Center, San Diego (NMCSD) in July 2003, the Neurology Department initiated a physical disability discharge board on the Applicant.

In February 2004, Military Police, Camp Hansen, Okinawa investigated a report of wrongful possession and use of a controlled substance due to a Marine overdosing on medication.  Applicant was listed as a victim in the investigation which determined another Marine stole applicant’s medication from her room and shared the drugs with his roommate.  The roommate required medical intervention for overdosing.  Four days later, the “thief” provided a second statement saying Applicant gave medication to him.  The command requests the investigation closed and elects to handle the matter administratively.  Applicant received NJP on 2 Apr 2004 for violations of Article 92, violating lawful general order and Article 112a, drug distribution.  The Commanding Officer notified Applicant of administrative separation processing on the basis of misconduct for drug abuse as evidenced by wrongful drug use and her NJP, recommending an Other than Honorable (OTH) discharge.  While pending discharge processing, Applicant was medically evacuated back NMCSD on 8 Jun 2004 and placed in a medical holding company.  Applicant’s treating neurologist initiated another medical board due which was approved and processed until September 2004.  Final discharge occurred 24 Sep 2004.

Concurrent with the legal proceedings, the applicant’s company commander completed a non-medical assessment indicating she was very capable to perform her duties despite her medical condition.  No performance problems were noted and completion of her current tour was acceptable.  Applicant’s career Pro/Con Marks were 4.4/4.0 and meet the standards of a Honorable characterization.  Applicant’s DD 214 is provided as enclosure (1).  A chronological listing of significant service events is provided in enclosure (2).

III. ARGUMENT Issues 1 and 2.

Paragraph 6210.5, MARCORSEPMAN, “Drug Abuse,” requires Marines to be processed for wrongful use of controlled substances or other substance abuse, as defined by SECNAVINST 5300.280, which includes prescription drugs.  See enclosures (3) and (4) Per enclosure (5), Applicant’s basis for notification for administration processing was wrongful use of the non-controlled medication Amitriptyline which resulted in her subsequent NJP.  Applicant’s medical records indicate she was authorized and prescribed the medication through her military health care provider due to her extensive medical problems.  Her medication profile is provided as enclosure (6); pharmacy drug profile of Amitriptyline, enclosure (7).

Both the UCMJ, Article 112a, para 37, c.(5) and SECNAVINST 5300.280, end (3), 1 .p., define possession/use of a controlled substance (emphasis added) as “wrongful” if it is without legal justification or authority or contrary to directions of a prescribing healthcare provider.  See enclosures (8) and (9).  Applicant’s possession and use of the medication was authorized and no evidence anywhere indicated inappropriate use by Applicant of any medication and/or drugs.  Furthermore, no definition of “wrongfulness” refers to prescription medication.  Notification of administrative separation processing to Applicant for wrongful use of a valid prescribed medication was improper and unquestionably prejudicial error.

The separation notification additionally stated that the wrongful use of Amitriptyline resulted in Applicant’s NJP.  Per enclosure (10), Applicant’s NJP did not contain any UMCJ charges for drug use.  She was creatively and, as discussed below, improperly charged with an order violation for distribution of the non-controlled Amitriptyline.  The command clearly states Applicant’s administrative processing basis is for drug use and references the Marine Corps’ policy on drug use in the notification to Applicant.  The processing basis for drug use is also stated in the command’s recommendation to the Separating Authority.  See enclosure (11).  No independent evidence of wrongful drug use exists, such as an urinalysis test.

Two command investigations were conducted, per enclosures (12) and (13).  The investigations were initiated on 2 Feb 04 and 6 Feb 04, respectively, due to an incident of a Marine overdosing on drugs in the barracks.  The Marine and his roommate provided sworn statements to investigators that the roommate stole medication from Applicant’s room and shared the drugs.  The second Marine further described taking the medication from Applicant.  Both were charged with wrongful use and possession of drugs, with the addition of a larceny charge to the roommate.  Four days later, the “thief” provided a second statement saying Applicant gave the medication to him.  Applicant consistently maintains the medication was stolen from her room and stated the roommate changed his story to avoid the larceny charge, by saying the drugs were given to him.  Neither investigation indicates wrongful drug use or urinalysis testing of Applicant and the command requested no further action on the investigation. 

 The notification of administrative separation processing of Applicant for drug use was improper and constituted prejudicial error.

Issue 3.

SECNAVINST 5300.28C, para 5.c. “Punitive Regulations Governing the Conduct of DON Military Personnel,” states the unlawful use of a prescribed or over-the-counter drug is prohibited and subjects the violator to punitive action under the UCMJ.  Distribution of a prescribed or over-the-counter drug is not defined nor included in the punitive regulations.  Only wrongful distribution of a controlled substance falls under the punitive regulations.  See enclosure (9).  At NJP, Applicant was charged under Article 92 for violating SECNAVINST 5300.280 for distributing Amitriptyline, a prescription drug, an act which was not an offense under the UCMJ, which constitutes prejudicial error.  See enclosure (10).

The Applicant’s Commanding Officer states in his recommendation to the Separation Authority that the basis for his recommendation to separate Applicant is her wrongful drug use and subsequent NJP.  Due to reliance of the command on erroneous facts and an improper offense as the basis for separation, the applicant’s discharge was improper and there was prejudicial error in the applicant’s discharge.  Enclosure (14) indicates the CO punished Applicant for an act that was not an offense under the UCMJ.  The CO received an improper charge and considered the material to inappropriately substantiate a finding of misconduct which became a basis to separate the applicant.  The CO’s consideration of the improper Article 92 offense is most prejudicial to the applicant due to the inflammatory nature of “drug distribution” and the number of pills in the flawed offense.  Once the Article 92 charge was set into motion as an offense, the prejudice to the Applicant could not be undone.

To compound the impropriety, the basis of Applicant’s discharge was supported by the flawed NJP and was relied upon by the Separation Authority.  Enclosure (15), the Separation Authority’s direction to separate Applicant is distinct proof that he relied upon the improper material which contributed to the decision to discharge the Applicant and/or unduly influence the characterization of service.

Issues 4 and 5.

The SJA (Legal) Review of Applicant’s case is defective because the SJA failed to note that Applicant was charged with an act that was not an offense under the UCMJ; therefore, indicating the review was neither sufficient in law or fact.  See enclosure (16).  The Review continues the damage of the flawed charge to Applicant by including the Article 92 as a basis for discharge and as part of the NJP listed in Applicant’s data.  The entire SJA’s Review is based on improper information and makes it impossible that the SJA, or anyone in the chain of command would realize the evidence did not even qualify as an offense; and, appears that it was highly unlikely that the SJA gave due diligence to the matter.  This point is extremely prejudicial to Applicant since the administrative paperwork signed by the SA is under the cognizance of the SJA, as well as prepared by or at the direction of the SJA.  The SA relies on the SJA to ensure that the evidence is legally sound; therefore, in the instant case, the flawed review became the flawed separation.

Additionally, the Applicant was notified that her administrative separation was based on drug use of a prescription medication.  However, the SJA (Legal) Review to the Separation Authority recommended separation based on drug distribution, considered a significantly more egregious drug offense, and Applicant was not informed of the change in basis of her discharge.  Failure to notify the Applicant of the change to allow her the opportunity to seek counsel or elect an administrative board is clear error.  She was clearly denied due process without proper notice and an opportunity to defend herself.  She only had knowledge and waived processing against her for use of a prescription medication.  The Separation Authority unilaterally directed her separation based on wrongful distribution of a controlled substance and medication, constituting prejudicial error.

Issues 6 and 7.

Applicant’s career Pro/Con Marks were 4.4/4.0, meeting the standards of an Honorable characterization; and her command non-medical assessment (NMA) reflects that her overall military service was satisfactory which is consistent with a discharge under Honorable conditions, per enclosures (17) and (18).  Under current regulations, the applicant’s overall record is properly characterized as under honorable conditions.  The applicant’s NMA completed by her Company Commander indicated she was very capable to perform her duties despite her medical condition.  No performance problems were noted and completion of her current tour was acceptable.  Two different Neurologists initiated medical boards on her for post-concussive syndrome/loss of conscious.  See enclosure (19).  Applicant would have received an Honorable medical discharge based on her marks and service record had not the flawed administrative separation processing occurred.

Issue 8.  Post-service conduct

Pursuant to 10 USC 874(b) and in accordance with SECNAVINST 5420.1740, enclosure (1), paragraph 2.24 and 9.3, the applicant requests the Board’s consideration of the above matters and the limitations her medical condition place on her brief post-service time to substantiate the requested discharge upgrade.  The NDRB is authorized to consider outstanding post-service factors in the re-characterization of a discharge to assist the applicant in her claim that the post-service conduct and behavior are reasons to upgrade her OTH discharge.  The honorable upgrade would permit the applicant to seek required medical care, disability and VA benefits for her service-connected injury, as well as use the Montgomery GI Bill to complete a college degree program.

In Applicant’s brief amount of post-service time, she has maintained a lifestyle free from any form of wrongful drug use and/or criminal activity.  Her medical condition with loss of consciousness prevents her from driving until she has no episodes for six months.  This limitation currently prevents her pursuit of continuing education and employment opportunities.  Since her discharge, Applicant became pregnant and focused on her health, the pregnancy and pre-mature birth of her son.  Applicant’s son required an extended stay in the Neo-natal Intensive Care Unit at Naval Medical Center, San Diego due to his early arrival.  Applicant and her spouse were provided lodging at the on-site Fisher House to facilitate access and time with their child.  Enclosure (20) provides further documentation to support her limitations and the family’s most recent life hurdles.  Understandably, Applicant has used her post-service time predominantly to focus on her family.

IV. CONCLUSION

The basis of Applicant’s administrative separation on drug abuse for drug use was complete legal and prejudicial error.  Failure to notify the Applicant of the change in her discharge basis immediately prior to the submission of her paperwork to the Separation Authority is outright lack of due process.  To exacerbate the injustice, Applicant was pending discharge under Honorable conditions via a medical board for a physical disability from a service -connected injury.  The uncorroborated drug abuse charges and “Misconduct” label of the administrative separation processing resulted in the cancellation of Applicant’s completed medical boards.  To afford the applicant appropriate relief from the legal and procedural errors, appropriate action would be to void the discharge by changing its date of issue to show completion of the normal term of service, entitling the applicant to back pay, allowances and return of forfeitures as well as adjusting her completion of service to reflect a Honorable characterization.  Ultimately, Applicant is seeking, through appropriate administrative channels, the upgrade to an Honorable characterization and to change the reason for discharge to medical separation for her service-connected head injury.  In the event that the NDRB can provide the requested and/or partial relief, Applicant will proceed as permitted, to request via proper BCNR petition for the discharge change to a medical separation.  In support of a discharge under honorable conditions, the applicant provided evidence of her career Pro/Con Marks 4.4/4.0 and her command performance assessment.

Finally, under the principles of equity and In support of a discharge under honorable conditions, the Applicant provided the NDRB evidence of her career Pro/Con Marks 4.4/4.0 and her command performance assessment.  Applicant’s post service has been brief, yet completely acceptable with focus on her family.  The Applicant respectfully submits the above matters for consideration and approval of the requested relief.”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Ltr from applicant, dtd August 8, 2005
Applicant’s DD214
Chronological summary of significant service events (2 pages)
MARCORSEPMAN 6210.5 (2 pages)
SECNAVINST 5300.280, dtd March 24, 1999 (23 pages)
Notification of Administrative Board, dtd May 12, 2004 (3 pages)
Medication profile of Applicant (6 pages)
Excerpt from Physicians’ Desk Reference (PDR) for Elavil/Amitriptyline (3 pages)
UCMJ, Article 112a, para 37, c.(5) (1 page)
SECNAVINST 5300.280, end (3), l.p. (page 6)
NAVMC1OI32, dtd April 8, 2004
CO, 9th Engineer Support Battalion recommendation letter, dtd May 12, 2004
Military Police Incident Report, dtd February 3, 2004 (6 pages)
Criminal Investigation Division Incident Report, dtd June 8, 2005 (3 pages)
Administrative Remarks (1070), NAVMC 118(11), dtd April 2, 2004
Commanding General, 3d Force Service Support Group Ltr, dtd June 1, 2004
Staff Judge Advocate’s ltr, dtd May 25, 2004
Career Proficiency/Conduct Marks
Commanding Officer’s ltr concerning Non-Medical Assessment, dtd March 29, 2004
Medical Board ltr from Department of Neurology, US Naval Hospital, Okinawa, Japan, dtd March 8, 2004
Department of Neurosciences, Defense and Veterans Head Injury Program, Naval Medical Center, San Diego, CA ltr, dtd July 26, 2004
Two Administrative messages from NAVMEDCEN San Diego, CA, dtd September 13, 2004, (2 pages)
Medical page, undtd 
Medical board pages (6 pages)
Certificate of live birth, dtd June 22, 2005
California Department of Motor Vehicles, customer receipt, dtd August 5, 2005
Ltr from The Neurology Center, dtd April 12, 2004 (4 pages) (unsigned)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20020701 - 20020825	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020826		Date of Discharge:  20040924

Length of Service (years, months, days):

Active:    02  00  29
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4

Education Level:  12				AFQT:  41

Highest Rank:  LCpl				MOS:  3531

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (5)				Conduct:  4.3 (5)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksman Badge, Sea Service Deployment Ribbon, National Defense Service Medal.

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:

020625:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

020701:	Pre-service waivers for weight, drug use and medical requirements granted.

030204:	Counseling:  Advised of deficiencies in performance and conduct (Violated Article 92 of the UCMJ.  Specifically violated the barracks SOP, DETO P11000.1 in that applicant allowed males to enter a female only barracks room and socialize.  Applicant signed a statement of understanding regarding the rules and articles of this school house and yet chose to disregard the rules.  Lack of maturity and discipline is not indicative of how Marines conduct themselves.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

031125:	Hansen Primary Care Clinic: A/P: Chronic headaches (unresolving).  D/W ER who recommends Percocet for pain relief.  If no relief he recommended transferring Applicant to ER.  RTC if no improvement.

031230:	Counseling:  Advised of deficiencies in performance and conduct (diagnosis of migraines, dizziness, and fainting, which interferes duties, specifically, the inability to participate in rigorous exercises, conditioning hikes, and field duty.), necessary corrective actions explained, sources of assistance provided and discharge warning issued.

040317:	Medical Board notification.  Applicant has been evaluated and will appear before a Medical Board convened at U.S. Naval Hospital for diagnoses ICD-9-CM 310.2 and 346.10.

040402:	NJP for violation of UCMJ, Article 112a: At ENGR SPT Co, 9th ENGR SPT Bn, Camp Hansen, on or about 28 November 2003, wrongfully distributed 12 Percocet pills, a controlled substance.
Violation of UCMJ, Article 92: At ENGR SPT Co, 9th ENGR SPT Bn, Camp Hansen, at 1630, on 30 January 2004, violated SECNAVINST 5300.28C, by wrongfully distributing 50 Amitriptyline pills.
	Award:  Forfeiture of $668 per month for 2 months, restriction for 60 days, rescind MCMAP status, reduction to E-2. Authorization to train in MCMAP suspended for 6 months.  Not appealed.

040402:	Counseling:  Advised of deficiencies in performance and conduct (Punished at Office Hours on 2 April 2004 for violations of Articles 112a and 92 of the UCMJ.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

040503:	Substance Abuse Evaluation: Applicant does not reveal a pattern of drug/alcohol abuse or dependence.  Therefore, does not need treatment for drug/alcohol abuse or dependence.  Unit education.  Applicant should be monitored and re-evaluated for any further incidents.

040512:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for the recommendation is the Applicant’s wrongful use of amitriptyline which resulted in her subsequent nonjudicial punishment.

040512:	Applicant advised of rights and having elected not 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.

040512:	Commanding Officer, 9th Engineer Support Battalion recommended Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was wrongful use of amitriptyline as identified through enclosure (3) [CID investigation # 06FEB04-4OKI-002447NMA/Z] and applicant’s subsequent nonjudicial punishment.  

040525:	SJA review determined the case sufficient in law and fact.
Basis for discharge:  Misconduct due to drug abuse (Wrongful distribution of percocet and amitriptyline)
NJPs:  040402 (Wrongfully distributing  Percocet and Amitriptyline)

040601:	GCMCA, Commanding General, 3d Force Service Support Group 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 20040924 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions.  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 (B, C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

Issues 1-2.  Reference (B) states, “A discharge shall be deemed proper unless, in the course of discharge review, it is determined that there exists an error of fact, law, procedure or discretion associated with the discharge at the time of issuance; and that the rights of the Applicant were prejudiced thereby.  Such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made.”  While the Board did find that the Applicant’s notification of intended recommendation for administrative separation was flawed, the Board found that the Applicant was sufficiently on notice as to the basis for her proposed separation by reason of drug abuse.  In addition to the Article 92 violation, the Applicant was subject to nonjudicial punishment for wrongful distribution of percocet on 20040402.  The Applicant’s violation of Article 112a of the UCMJ, a serious offense, met the separation processing elements for drug abuse per paragraph 6210.5 of MARCORSEPMAN.  Though the factual basis for the recommendation was specified as the Applicant’s wrongful use of amitriptyline, the Board found that this error did not invalidate the notification or constitute sufficient error to grant relief  per Reference (B) as the Board had no doubt that the discharge would have remained the same had the error not been made.  Relief on this basis is denied.

Issue 3.  The Applicant contends, through counsel, that the Applicant was charged with an act that was not an offense under the UCMJ at her nonjudicial punishment on 20040402.  The Applicant’s counsel further contends that this act constitutes prejudicial error.  While the Board found that the Applicant had not committed an offense under Article 92 of the UCMJ, nevertheless, the Board found that the Applicant’s nonjudicial punishment was proper given her violation of Article 112a.  The Board also determined that had the Applicant not been improperly charged with a violation of Article 92, the Applicant’s discharge would have remained the same.  Relief denied.  

Issue 4.  The Applicant contends, through counsel, that the Staff Judge Advocate review of the Applicant’s recommendation for administrative separation was defective for failure to note discrepancies in the Applicant’s NJP charges and the Applicant’s “basis for separation.” The Applicant’s counsel further contends that this discrepancy constitutes prejudicial error.  While the Board does not dispute that the Applicant was subject to nonjudicial punishment for an act that was not a violation of Article 92 of the UCMJ, the Board did not find sufficient cause to meet the criteria for an upgrade based on  prejudicial error.  The evidence of record demonstrates the Applicant violated Article 112a of the UCMJ by wrongfully distributing percocet.  The Board determined that had the SJA’s review noted the discrepancy regarding the Applicant’s nonjudicial punishment award for an act that was not a violation of Article 92, the Applicant’s discharge would have remained the same.  Relief denied.  

Issue 5.  The Applicant contends through counsel that the Staff Judge Advocate recommended separation based on drug distribution and that the Applicant was not informed of the change and/or basis of her discharge.  The SJA review indicated the Applicant was being recommended for administrative separation by reason of misconduct due to drug abuse.  The Applicant’s violation of Article 112a for wrongfully distributing percocet meets the criteria for separation by reason of drug abuse.  That the SJA included the Applicant’s act of distributing amitriptyline in addition to percocet was not found sufficient prejudicial error to warrant an upgrade in discharge.  Relief denied. 

Issue 6.  The Applicant contends through counsel that her final evaluation marks and recommendation reflect her overall military service was satisfactory and consistent with a discharge under honorable conditions.  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 her nonjudicial punishment proceedings for wrongfully distributing a controlled substance, a violation of Article 112a of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

Issue 7.  The Applicant contends through counsel that the record contains “uncorroborated drug abuse charges” that adversely affected the Applicant’s medical board.  The Applicant was subject to nonjudicial punishment for violating Article 112a of the UCMJ.  Mandatory processing for separation is required for Marines who violate Article 112a.  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.  Further, whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, disability evaluation processing is suspended.  The Physical Evaluation Board (PEB) case remains in suspense pending the outcome of the administrative proceedings.  If the action includes either a punitive or administrative discharge for misconduct, PEB processing is terminated.  Relief denied.

Issue 8.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.   Additionally, there is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Further, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  Representation at a personal appearance hearing is recommended but not required.

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.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  U.S. Marine Corps Criminal Investigation Division Report of Investigation, Control Number:  06FEB04-40KI-00244-7NMA.

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 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