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Docket No. MD02-00343

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

 ex-Pvt, USMC
Docket No. MD02-00343

Applicant’s Request

The application for discharge review, received 020128, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020912.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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 Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  To whom this may concern, there are a couple issues I'd like to discuss.  First I'm writing 3 years later than I was discharged I'm 23 yrs old now, old enough to understand the opportunity I had when 18, 19.  I had made some bad choices with alcohol and paid a price.  I have 2 articles 15 from drinking which resulted in other than honorable conditions.  I did not understand allot of the reasons why the Corps asked us to be a cut above the rest, but I see now.  I didn't act like a Marine after duty that's why I'm out.  I'm hoping that it might be possible to put on the uniform one more time.  I promise to not take this opportunity for granted.

PS.  Also because of Alcohol Rehab failure is one of the main reasons they discharged me, but I had completed 28 out of a 30-day outpatient program.  The Dr had put me out of the program for a toast I had at my wedding!

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		961220 - 971216	COG

Period of Service Under Review:

Date of Enlistment:  971217		Date of Discharge:  990217

Length of Service (years, months, days):

	Active:    01  02  01
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  11 GED		AFQT:  56

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (2)			Conduct:  3.5 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  Letter of Appreciation

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

980626:	NJP for violation of UCMJ, Article 92:
Specification: Disobeyed a lawful written order, to wit: DetO 1601.P by having a female visitor sign in and failing to limit her whereabouts within the confines specified and further having a female visitor in his room past curfew on 2130, 31 May 98.
Awarded forfeiture of $150.00 per month for 2 months, restriction for 30 days, reduction to Pvt.  Not appealed.

980822:	Applicant's driving privileges on all military installations revoked for 1 year. 

980914:	NJP for violation of UCMJ, Article 111:
Specification: While in operation of a vehicle, drove the vehicle while intoxicated, (BAC refusal), attempted to pass the Marshall sentry gate at Fort Bliss, TX in an incapacitated condition on 0130, 22 Aug 98.
Violation of UCMJ, Article 92: Failure to obey order or regulation, to wit: willingly disobeying Detachment Order, governing the use of a POV while assigned to the Marine Corps Detachment as a student on 22 Aug 98.
Awarded forfeiture of $463.00 per month for 2 months.  Not appealed.

980914:	Counseled for deficiencies in performance and conduct.  [Drunk or reckless operation of a vehicle.  On 14 Sep 98 applicant found guilty of Art. 111, UCMJ for drinking and driving on 22 Aug 98 while aboard USAAC, Fort Bliss, TX as evidenced by refusing a BAC reading and violation of the UCMJ, Failure to obey order or regulation, Article 92, UCMJ for willingly disobeying Detachment Order governing the use of a POV while assigned to the Marine Corps Detachment as a student.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990106:	Applicant terminated from treatment as a treatment failure due to failure to adhere to treatment rules, regulations and lack of commitment to individual rehabilitation plan.

990107:	NJP for violation of UCMJ, Article 91:
Specification: Treat with disrespect a Cpl with belligerent and vulgar language on 14 Nov 98.
Violation of UCMJ, Article 92: 
Specification: Violated BnO 1700.2C by drinking alcohol under the legal age of 21 on 14 Nov 98.
Violation of UCMJ, Article 134: Displayed disorderly conduct and drunkenness by urinating off of the 2d deck of Barracks 4296 on 14 Nov 98.
Awarded forfeiture of $216.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

990107:	Counseled for deficiencies in performance and conduct.  [Failure to complete alcohol rehabilitation, specifically the failure to abstain from alcohol and adhere to treatment rules, regulations, and lack of commitment to individual rehabilitation plan.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990122:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and alcohol rehabilitation failure.

990122:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

990122:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and alcohol rehabilitation failure.  The factual basis for this recommendation was 3 NJP's and 2 page 11's.  Also applicant’s treatment failure due to noncompliance with treatment due to failure to adhere to treatment rules, regulations, and lack of commitment to the treatment program as evidenced by Director, Substance Abuse Counseling Center, letter 5300 SACC/ylh of 7 January 1999. 

990204:	SJA review determined the case sufficient in law and fact.

990204:	GCMCA [Commanding General, 2d Marine Aircraft Wing] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990217 under other than honorable conditions for misconduct due to a pattern of misconduct (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 proper and equitable (D and E).

Issue 1.  The applicant was discharged for a pattern of misconduct.  The applicant’s explanation for failing alcohol rehabilitation treatment does not mitigate his misconduct. Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore 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 injustice must have existed during the period of enlistment in question.  No such error or injustice occurred 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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 91, disrespect to a NCO; Article 92, failure to obey a lawful general order; Article 111, drunken driving; Article 134, drunk and disorderly.

C.  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.  

D.  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.

E.  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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A9301/A9317/A9241/A9221