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Docket No. MD05-01221

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

FOR OFFICIAL USE ONLY

 ex-PVT, USMC
Docket No. MD05-01221

Applicant’s Request

The application for discharge review was received on 20050718.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests 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 20060403.  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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“The upgrade Is requested to enable utilization of VA medical benefits, MGIB Benefits and even Possible re-enlistment.”

Documentation

Only the service record book and medical record were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	20000912  – 20001105		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20001106		Date of Discharge:  20030319

Length of Service (years, months, days):

Active:    02  04  14  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 

Education Level:  12				AFQT:  61

Highest Rank:  LCpl				MOS:  0121

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (6) 				Conduct:  3.4 (6)

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

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

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

Chronological Listing of Significant Service Events:

010807:	Counseling:  Advised of deficiencies in performance and conduct (Personal involvement in a Alcohol Related incident (ARI) that occurred on 010806.  Having just checked into his current/first command on 010803, SNM, while not of legal age to consume alcohol, was appraised to be intoxicated by the Barracks 2537 (Camp Hansen) duty NCO upon returning to such barracks at approximately 2335 on 010806.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010921:	Applicant completed the recommended 20 hour Alcohol IMPACT class this date.

011113:	Clinical Record:  Applicant referred for admission for suicidal ideation, suicide gesture.  Patient reported to have written suicide note which was found in Barracks 011109.  Search of barracks found patient in rack with civilian belt around his neck.  Patient denies any suicidal thoughts or intention.  Patient reports “I wear collars around my neck before bed.”  Patient reports that he wrote note 2 months ago and not must have fallen out of his notebook.  

011119:	Counseling:  Advised of deficiencies in performance and conduct (Continued involvement with Alcohol Related Incident’s (ARI’s), On or about 011102 at 0230, aboard Camp Hansen, SNM was found intoxicated by Cpl B_, a Military Policeman who was off-duty at that time and escorted SNM to Barracks 2537.  SNM had passes out due to over consumption of alcohol.  SNM is under the legal age to consume alcohol.  Also SNM failed to have a Liberty buddy and did not possess a Liberty Chit.  SNM formally counseled that his continued involvement with (ARI’s) and lack of common sense/self discipline to restrain him-self from consuming alcohol are totally unsatisfactory, and such continued action/lack of action on his part demonstrates little, if any, regard to being a productive, effective member of his command.), necessary corrective actions explained, sources of assistance provided.

011120:	NJP for violation of UCMJ, Article 92:
	Specification 1:  In that PFC G_ H. B_ (Applicant), did, on board Camp Hansen, Okinawa Japan, on or about 0230, 2 November 2001, failed to obey a lawful general order, to wit:  by wrongfully consuming alcohol under the legal drinking age.  
	Specification 2: In that PFC G_ H. B_ (Applicant), did, on board Camp Hansen, Okinawa Japan, on or about 0230, 2 November 2001, failed to obey a lawful general order, to wit:  by wrongfully and knowingly not having a liberty buddy.  
Specification 3:  In that PFC G_ H. B_ (Applicant), did, on board Camp Hansen, Okinawa Japan, on or about 0230, 2 November 2001, failed to obey a lawful general order, to wit:  by wrongfully and knowingly not having a liberty chit.
	Award:  Forfeiture of $259.00 (7 days of pay), restriction and extra duty for 14 days.  Not appealed.

020128:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of February 2002 Prom because of company level NJP on 011120 and will not be eligible for promotion for a period of 3 months.  Applicant chose not to make a statement.

020327:	Applicant was assigned to Intensive Out Patient Treatment (IOP) for substance abuse disorder by Commanding Officer, III MEF Headquarters Group.  
	Diagnostic Impressions:  
	Axis I:  Alcohol Dependence, 303.90, With Physiological Dependence
	Axis II:  Diagnosis Deferred on Axis II  799.9
	Axis II: Diagnosis Deferred on Axis III  799.9
	Axis IV:  Problems with primary support group
	Recommendations:
	1)  Refer to SACC for Intensive Outpatient Alcohol Treatment at the Counseling Center, Bldg 440, Camp Foster.
	2)  Attend 2 or more AA meetings per week and ensure to document attendance on attendance log (use the provided AA meeting schedule for time and locations).  Obtain an AA sponsor, make contact regularly and work the 12 Steps of AA to help remain abstinent.  In case of cravings, increase the meetings and ask a AA member for assistance.

020416:	Applicant successfully completed the Intensive Out Patient portion of treatment for Alcohol Dependence with fair prognosis.  Applicant given continuing/After care treatment plan.

021024:	Counseling:  Advised of deficiencies in performance and conduct (Failure to obey regulations and lack of discipline.  A lack of understanding and compliance to Marine Corps Standards of Conduct.  Chain of command has counseled and given guidance to assist in the performance of duties while assigned to the command.  Violation of Article 91 UCMJ on 020909 for disregard of an order issued by an NCO to return to the barracks and shave.  On 020911 counseled for violation of Article 91 of the UCMJ, specifically, disobeying an order from a SNCO to inventory personal gear before departing to UFL.  On 020930 counseled for violation of Articles 91 and 117, specifically, disrespect to an NCO and making threatening gestures towards another Marine.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021226:	NJP for violation of UCMJ, Article 92 (2 Specs):
Specification 1:  In that LCpl G_ H. B_ (Applicant), did, on board Camp Hansen, Okinawa Japan, on or about 0800, 02 December 2002, failed to obey a lawful order to wit:  SNM was wearing a tongue ring and was seen by a Staff NCO, which is a violation of ALMAR 194/96 in ref  to MCO 1020.34F.
Specification 2:  In that LCpl G_ H. B_ (Applicant), did, on board Camp Hansen, Okinawa, Japan, on or about 1800 10 December 2002, failed to obey a lawful order, to wit:  SNM was out in town without checking with duty NCO, which is in violation of MARCORBASEJAPANO 1050.5.
Violation of UCMJ Article 91:
Specification:  In that LCpl G_ H. B_ (Applicant), did, on board Camp Hansen, Okinawa, Japan, on or about 1800 10 December 2002, willfully disobeyed a non-commission officer, to wit:  when ordered to return to base by Cpl B_ to return to his barracks and put on appropriate liberty attire SNM knowingly disobeyed the order and proceeded back into town.
	Award:  Forfeiture of $511.00 pay per month for 1 month, restriction for 60 days, reduction to E-2.  Not appealed.

030105:	Counseling:  Advised of deficiencies in performance and conduct (Unauthorized absence and failure to obey an Order or regulation.  On 030104, violation of Articles 86 and 92 of the UCMJ by not checking in with the Group Duty Officer at 0800 and 1200 when required to do so and while on restriction status and failed to obey the orders outlined in your restriction papers, issued as a result to recent NJP on 021226, counseled by Company 1^st Sgt about signing in when required to do as specified in the restriction orders), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

030124:	NJP for violation of UCMJ, Article 86:
Specification 1:  In that PFC G_ H. B_ (Applicant), did, on board Camp Hansen, Okinawa Japan, on or about 0800, 4 January 2003, without authority failed to go at the time prescribed to his appointed place of duty, to wit: SNM knowingly absent himself from checking in for restriction at the Group Duty Officers shack Bldg 2860, Camp Hansen, where he was required to be.
	Specification 2:  In that PFC G_ H. B_ (Applicant), did, on board Camp Hansen, Okinawa Japan, on or about 0800, 4 January 2003, without authority absent himself by failing to report in for restriction on 05 January 2003, to wit:  SNM knowingly absent himself from his appointed place of duty where he was required to be.
Award:  Restriction duty for 7 days, reduction to E-1.  Not appealed.

030129:	Chronological Record of Medical Care:  Applicant brought to medical by Staff NCOIC for member “voicing concerns about going crazy.”  Patient states “I have too much going through my head at once” and “I feel like beating someone within an inch of his life.”  Patient contracts for safety and denies any immediate thoughts or plan to harm himself or another.  Patient has followup for further eval.

030131:	Chronological Record of Medical Care:  Impression:  Adjustment Disorder mixed-resolved, Personality Disorder, NOS immature passive aggressive traits, occupational problem.

030205:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

030211:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

030219:	Commanding Officer, III MEF Headquarters Group, recommended to Commanding General, III Marine Expeditionary Force that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was documented history of misconduct as documented in four counseling entries and three NJP’s.  Applicant has also been evaluated by a psychiatrist and was found not to be suicidal or homicidal, and has not been diagnosed with a personality disorder.  Commander’s Comments:  “Applicant has a history of alcohol abuse and to this date has completed required CSAAC treatments and is continuing his treatment with required AA meetings.”

030225:	SJA review determined the case sufficient in law and fact.

030304:	Commanding General, III Marine Expeditionary Force, advised the Commandant of the Marine Corps (MMSB) that the Applicant will be discharged 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 20030319 by reason of misconduct due to a pattern of misconduct (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 and C).

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  The Applicant was awarded nonjudicial punishment (NJP) on three separate occasions for multiple violations of UCMJ Article 86, unauthorized absence and Article 92, failure to obey order or regulation.  The Applicant was administratively warned by the issuance of a formal Counseling/Retention warning on several occasions that further misconduct could result in administrative separation.  The Applicant’s continued misconduct violated these retention warnings and, under applicable regulations, constituted a pattern of misconduct.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  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.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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 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.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 2001 until Present. 

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.

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