Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. MD05-00456

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

 ex-Pvt, USMC
Docket No. MD05-00456

Applicant’s Request

The application for discharge review was received on 20050112.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  The Applicant listed the Department of Veterans Affairs as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050428.  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 HONORABLE CONDITIONS (GENERAL)/Alcohol Abuse Rehabilitation Failure (administrative discharge board not required), authority: MARCORSEPMAN Par. 6209.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  Advice that was taken by me from fellow marines about refusing Level III treatment to receive a General Under Honorable conditions discharge rather than completing the program and possibly receiving a Bad conduct discharge for future poor decisions.

2.  After maturing I did follow the advice of the Marine Corps and sought treatment of my own free will.  Realizing that at the time of service I couldn’t comprehend the repercussions of my decisions.

3.  After completing treatment and becoming educated that what I have is an illness and it ultimately influenced my poor decision to take a quick and easy discharge which I truly regret.

4.  I am trying to re-enlist in the Marine Corps Reserve unit in my area.  What I am requesting is an upgrade in my re-enlistment code from an re-4 to whatever code I need to become the Marine I cheated myself out of being in the past.”

The Applicant’s representative did not provide any issues.

Documentation

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

Letter from Glenbeigh Center of Erie, Hospital and Outpatient Care, dated December 31, 2003
Applicant’s DD Form 214
One hundred and eleven pages from Applicant’s service/medical records
Job/character reference, dated October 21, 2003
Character reference from Applicant’s wife, dated October 20, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		920313 - 920818	COG

Period of Service Under Review:

Date of Enlistment:  920819		Date of Discharge:  940111

Length of Service (years, months, days):

	Active:    01  04  23	Does not exclude lost time
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  65

Highest Rank:  Pvt			MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (5)			Conduct:  4.0 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  RMB, NDSM

Days of Unauthorized Absence:  2

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

UNDER HONORABLE CONDITIONS (GENERAL)/Alcohol Abuse Rehabilitation Failure (administrative discharge board not required), authority: MARCORSEPMAN Par. 6209.

Chronological Listing of Significant Service Events:

930314:	Applicant received a DWI with a BAC of .19. [Extracted from Medical Officer Consultation report, 23 Apr 93.]

930315:	Applicant in hands of civilian authorities 0700, 930315.

930317:	Applicant released from civilian authorities 2359, 930317 and escorted to command (2 days).

930401:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from 0500, 930315 through 2359, 930317.
Violation of UCMJ, Article 90:
Specification: Failed to obey a lawful order from Capt E_ not to drink and drive on 1100, 930314.
Awarded restriction and extra duties for 14 days.  Not appealed.

930423:	Director, Consolidated Drug and Alcohol Center, Marine Corps Base, Camp Lejeune, evaluation for Level III In-Patient Treatment: Applicant was diagnosed as alcohol dependent and poly substance dependent (in remission).  Recommend Level III in-patient treatment.  Psychiatric evaluation.  Three AA meetings per week until treatment.  Weekly meetings with unit SANCO until treatment.

930512:	Medical evaluation by Head, ARD, Camp Lejuene.  
	Diagnostic Impression: Alcohol Dependence.  Poly Substance Dependence (in remission). Recommend Level III in-patient treatment.  Psychiatric evaluation.  Three AA meetings per week until treatment.  Weekly meetings with unit SANCO until treatment.

930529:	Applicant referred for psychiatric evaluation by CDAC.  Assessment: 1) ETOH dependence.  2) Poly Substance abuse, in remission.  3) R/O Antisocial personality disorder.  Plan: 1) Level III ARD (930618).  2) Consider psychiatric evaluation on return if Applicant desires same.  3) Follow up PRN.

930625:	Applicant counseled regarding substance abuse and ordered to participate in a Level 3 treatment program.  Applicant refused treatment for substance abuse behavior.

930701:	Applicant refused Level III alcohol treatment.

930708:	Director, Consolidated Drug and Alcohol Center, Marine Corps Base, Camp Lejeune, evaluation of report for refusal of treatment.  Applicant was evaluated on 23 Apr 93.  Diagnostic impression: alcohol dependence. Applicant refused Level III treatment because he does not want treatment. The Applicant signed a refusal of treatment on 930701 and may be considered for separation.  He was counseled and was provided the address of the nearest Veterans Administration Hospital to his home of record.  The Applicant requested treatment at the VAMC with discharge.
930930:	Applicant notified of intended recommendation for discharge by reason of alcohol rehabilitation failure due to refusal of Level III treatment.  The least favorable characterization which you may receive is under honorable conditions (general).

930930:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

931005:	Counseled for deficiencies in performance and conduct.  [Concerning VA rights as they pertain to Level III treatment.  I was seen by a substance abuse counselor on 930423 and was recommended for Level III treatment which I did not attend due to my refusing treatment.  I have been advised to attend a Level III program via the Veterans Administration.  On 931005 I had my VA rights read and explained to my understanding.  I am not requesting treatment in conjunction with my separation.]

931005:	Applicant refused Level III alcohol treatment.

931017:	Commanding Officer recommended discharge under honorable conditions (general) by reason of alcohol rehabilitation failure due to refusal of  Level III treatment.   The factual basis for this recommendation was Applicant’s refusal to participate in Level III alcohol treatment.  

931220:	SJA review determined the case sufficient in law and fact.

931227:	GCMCA, Commanding General, 2d Marine Division, MarForLant, Camp Lejeune, NC, directed the Applicant's discharge under honorable conditions (general) by reason alcohol rehabilitation failure due to refusal of Level III treatment pursuant to paragraph 6209  of MCO P5300.12. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940111 with a under honorable conditions (general) due to alcohol abuse rehabilitation failure (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, 2, 3.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, the Applicant states that he refused Level III treatment based upon the advice of “fellow Marines”, his immaturity, and his desire to “take a quick and easy discharge”. The record shows that the Applicant was evaluated by a substance abuse counselor, a medical officer, and a psychiatrist, all recommending that he attend Level III treatment.  The Applicant was properly notified of the recommended discharge, waived his right to consult counsel, and was properly processed.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  Relief denied.

Issue 4.  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 a letter documenting his completion of chemical dependency treatment programs during March  - July 2001.   In addition, the Applicant provided letters of recommendation from his employer and his wife.  While the Board recognizes the Applicant’s efforts towards substance abuse rehabilitation, his efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted.

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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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 P1900.16D, effective 890627 until 950817), Paragraph 6209, ALCOHOL REHABILITATION FAILURE.

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

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.