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Docket No. MD02-01274

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

 ex-Pvt, USMC
Docket No. MD02-01274

Applicant’s Request

The application for discharge review, received 020903, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030722.  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.	 I am requesting an upgrade to my discharge.  I feel and continuously strive to make my character the best of any situation or act.  I have changed my character and attested with documents 1 thru 5 that I have changed, and will continue to have the best – and – outstanding character.  See my statement – document No.6.

Documentation

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

Copies of DD Form 214 (Copy 4 & 1)
Character Reference letter from J- G_, Asst Chief, AC&P, dtd Dec 21, 2001
Character Reference letter from D_ T_, Church Youth Worker, dtd Aug 19, 2002
Character Reference letter from P_ B. C_, dtd Oct 18, 2001
Letter from Employer, D_ S_, dtd Nov 6, 2001
Character Reference letter from E_ H_, Veterans Claims Examiner, dtd Aug 19, 2002
Applicant’s statement to the Board dtd Aug 19, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		981030 - 981206	COG

Period of Service Under Review:

Date of Enlistment:  981207		Date of Discharge:  991210

Length of Service (years, months, days):

	Active:    01  00  04
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  GED		AFQT:  68

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (3)			Conduct:  3.6 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  Marksman Rifle Badge

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:

990526:	NJP for violation of UCMJ, Article 91:  On 21 and 22 May 99, disobeyed a lawful order given by the 1stSgt of the Detachment to wit:  No one under the age of 21 will consume alcoholic beverages while a student here at Marine Corps Detachment, Ft. Lee, VA.  Did fail to obey said order by consuming alcoholic beverages at the Royal Inn Hotel in Petersburg, VA.
Violation of UCMJ, Article 92:  In that SNM did, on 21 and 22 May 99, fail to obey DetO P3000.lK to wit:  Marines under the age of 21 is not authorized to consume alcoholic beverages while a student here at Marine Corps Detachment, Ft. Lee, VA. Did fail to obey said order or regulation by consuming alcoholic beverages at the Royal Inn Hotel in Petersburg, VA.  
Violation of UCMJ, Article 134:  Under age drinking.
Awarded reduction to E-1, forfeiture of $479.00 per month for 2 months, restriction and extra duties for 21 days (restriction and extra duties for 7 days suspended for 6 months).  Not appealed.

990623:	NJP for violation of UCMJ, Article 91: On 19 June 99, on or about 2300, disobeyed a lawful order given by the 1stSgt of the Detachment to wit:  No student under the age of 21 will consume alcoholic beverages.  Did fail to obey said order by consuming alcoholic beverages at the American Inn Hotel.
Violation of UCMJ, Article 92:  In that SNM did, on 19 Jun 99, on or about 2300, failed to obey DetO P3000.lk which prohibits students under the age of 21 to consume alcoholic beverages at the American Inn Hotel.
Violation of UCMJ, Article 134:  This was the accused’s second offense of under age drinking, and that under the circumstances the accused’s conduct was to the prejudice of good order and discipline in the Armed Forces and was of a nature to bring discredit upon the Marine Corps.
Awarded forfeiture of $223.00 per month for 1 month, restriction and extra duties for 14 days (restriction and extra duties for 13 days suspended for 6 months).  Not appealed.

990623:	Counseled for deficiencies in performance and conduct [under age drinking – on 19 Jun 99, detained for under age drinking at a local hotel.  This was the second offense.  Her actions were totally blatant.  She has an “I don’t care attitude” which has also effected other Marines within this detachment].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990721:	SACC, San Diego:  Applicant evaluated and meets DSM IV criteria for alcohol abuse and recommended enrollment in the Outpatient Program.

990830:	SACC, San Diego:  Applicant failed to follow the prescribed continued care program and returned to alcohol abuse.  Per MCO P1900.16E, paragraph 209, the Marine will be processed for separation as an alcohol rehabilitation failure.

990825:	Summary of Mental Health care:  20 year old single Caucasian female with approximately 8 months continuous active service in the USMC.  She presented to MHU after a recent traumatic fall from a cliff in Tijuana Mexico while out “partying” with friends.  She has been seen for emotional liability and was once admitted for inpatient care in acute decompensation after leaving her workspace and refusing to return.  She has also been followed for Alcohol Abuse treatment on an outpatient basis by the command SACO.  Most recently, she returned to MHU by command direction after an incident on CONLEAVE in which she was charged with possible Driving Under the Influence of alcohol.  Upon testing, her blood alcohol level was found to be well above legal limits for driving and she apparently consumed the alcohol without consideration of her promise to the USMC to avoid alcohol until her 21^st birthday (MAR 2000).  Today the member states she cannot tolerate the structure and demands of a military career anymore, and has indeed shown this to be true over her brief enlistment.  She began having alcohol abuse problems while in her MOS school, faced two NJPs and despite treatment continues to drink in excess “to have a good time.”  In her workcenter she has displayed intermittent temper tantrums and moodiness, and feels she has earned a poor reputation “that will follow me everywhere I go.”  She wants to leave the Marine Corps “as soon as possible,” and does not believe she can or will change her alcohol abuse habits to the point of complying with good order and discipline of the Corps.  Her overall life patterns have been chaotic, including abusive relationships, sexual abuse incidents, and dropping out of both school and college.  It is unlikely she will be able to sustain the emotional and behavioral stability necessary to complete her enlistment without further incidents.
	DIAGNOSIS:
AXIS I:	Acute Stress from fall 208.3 – not a diagnosis for disability referral.  
	Alcohol abuse, not in remission – not a diagnosis for disability referral.
AXIS II:	Borderline Personality Disorder – EPTE, not suitable for military service.
AXIS III:	Gamekeepers thumb, post surgical.
AXIS IV:	Geographical separation from primary support (mother) and legal problems.
AXIS V:	GAF: 75 currently anxious, poor appetite, irritability and crying spells.
	80 in past year, with impairments at work and home.
FINDINGS:
It is recommended this member be discharged via 
Administrative Separation for personality disorder and alcohol abuse 
treatment failure in accordance with DOD Directive 6130.3 section DD.

991018:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and for convenience of the Government, specifically for having a pattern of misconduct and personality disorder.  

991018:	Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

991018:	Commanding Officer, Hqtrs & Service Battalion, MCRD, San Diego, CA, recommended discharge under other than honorable conditions by reason of misconduct and convenience of the government, specifically for having a pattern of misconduct and personality disorder.  The factual basis for this recommendation was due to Applicant having received non-judicial punishment on two separate occasions for disobeying a lawful order and under age drinking, a psychiatrist has provided a diagnosis of borderline personality disorder which could deteriorate into self-harmful behavior and continued alcohol abuse.  

991103:	Applicant requested to conditionally waive her right to a hearing before an Administrative Discharge Board contingent upon receiving a General (Under Honorable Conditions) characterization of service.

991116:	CG, MCRD/WRR San Diego denied Applicant request for conditional waiver of administrative discharge proceedings.

991116:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

991201:	SJA review determined the case sufficient in law and fact.

991201:	GCMCA [Commander, MCRD/WR San Diego] 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 991210 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.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions and adverse counseling entries on other occasions.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her disobedience of the orders and directives which regulate good order and discipline in the naval service.  An upgrade would be inappropriate.  Relief denied.

The Applicant’s discharge characterization accurately reflects her service to her country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity 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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and evidence of a substance free lifestyle, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which she was discharged.  Relief denied.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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, disobeyed a lawful order of a SNCO; Article 92, failure to obey a lawful general order; Article 134, underage drinking.

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.
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