Author: CAP
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Docket No. MD06-00507

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

FOR OFFICIAL USE ONLY

 ex-PFC, USMC
Docket No. MD06-00507

Applicant’s Request

The application for discharge review was received on 20060223.  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 personal appearance hearing discharge review before the board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.

Decision
A personal appearance hearing discharge review was conducted in Washington, D.C. on 20070509.  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 4 to 1 that the character of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of separation in lieu of trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Equity – Alcohol problem

Equity – Personal problems

Equity – Post service

Documentation

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

Applicant’s DD Form 214 (Service 2)
Certificate of Appointment to Staff Sergeant, El Dorado Correction Facility, dtd October 	12, 2003
Certificate of Appreciation, Kansas Department of Corrections, dtd June 7, 1999 to June 	7, 2004
Certificate of Completion, 16 hour Multijurisdictional Counterdrug Task Force Training, 	October 25, 2004 through October 26, 2004
Recognition Award, dtd July 22, 2004
Warden’s Commendation Certificate, dtd July 1, 2003
Fifty – seven (57) pages from the Applicant’s service record 

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19870130 - 19870526	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19870527		Date of Discharge:  19920616

Length of Service (years, months, days):

Active:    05  00  19  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  742 days
	Confinement:		  None

Age at Entry:  19 

Years Contracted:  4 

Education Level:  12				AFQT:  38

Highest Rank:  LCpl				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (10)		Conduct:  3.3 (11)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  None.

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

UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

880226:	Branch Hospital NAS Adak.  Applicant describes unable to control anger, concerned that he might hurt someone if lost control, becoming unconcerned about appearance, but wants to stay USMC.  
	Assessment: Stress due to supervisor, difficulty with anger control.
	Plan: Refer to Dr. C_ (Psychology).

880307:	MCSFCO, NAS Adak, AK.  Reliability screening conducted per MCO 5510.7F.  Results unsatisfactory.  Applicant has not submitted a statement to CMC on his behalf in connection with the unsatisfactory screening results.

880307:	Branch Hospital Adak, AK, Psychology Department.  Patient (Applicant) referred for evaluation due to difficulties controlling his anger, lack of concern for appearance, stress related to family members.  
	Assessment: Axis I: Alcohol Abuse mild 305.00.
	Axis II: Antisocial traits.
	Plan: Member does not meet the reliability standards for PRP qualification.  Member should not be certified for PRP.  
	Member is recommended for Command Level II Alcohol Abuse program.  Member advised to abstain from alcohol, attend AA/ACA meeting.  Member’s suitability for military service should be reviewed by Command.  Follow-up appointment 3/14 1000.  Member is responsible and accountable for his actions.

880311:	PRP Certifying Medical Officer: Case reviewed.  Agree individual does not meet reliability standards for PRP.  As his personality traits of a long standing nature, recommended he permanently be excluded from consideration for PRP.  

880412:	Counseling:  Advised of deficiencies in performance and conduct (Failure to meet the financial responsibilities and obligations placed on me when using a checking account.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880726:	Counseling:  Advised of deficiencies in performance and conduct (Improper military appearance, failure to get a haircut.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890106:	NJP for violation of UCMJ, Article 134:  SNM uttered 5 worthless checks in excess of $500.00 by dishonorably failing to maintain funds.
	Award:  Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

890328:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 121:
	Specification: Steal $20.00 in lawful U.S. Currency, the property of LCpl R_ A. B_, USMC.
	Charge II: violation of the UCMJ, Article 107:
	Specification: Make false official statement concerning knowledge of $20.00 in stolen U.S. Currency.
	Charge III: violation of the UCMJ, Article 134:
	Specification: Falsely swear to official statement concerning knowledge [continuation not legible].
	Finding: to Charge I, II, and III and the specification thereunder, guilty.
	Sentence: Forfeiture of $466.00 pay per month for 1 month, reduced to E-1, restriction for 60 days.
	CA action 890328:  Sentence approved and ordered executed.

890421:	Counseling:  Advised of deficiencies in performance and conduct (Violations of UCMJ resulting in 1 NJP and 1 summary court martial), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890531:	Counseling:  “SNM (Applicant) counseled this date concerning second loss of a Military ID Card.  If corrective action is not taken SNM (Applicant) will result in NJP.”

891003:	Applicant to UA at 0530, 891003.

891005:	Applicant from UA at 0530, 891005 (surrendered).

891101:	NJP for violation of UCMJ, Article 86: UA 0530, 891003 to 0530, 891005 from 2dBn, 9thMar.
	Violation of UCMJ, Article 92: Did on 891008, disobeyed a lawful order, by failing to call into the DNCO at GCo, 2dBn, 9thMar.
	Award:  Forfeiture of $104.00 pay per month for 1 month, restriction and extra duty for 14 days.  Not appealed.

891130:	Counseling:  Advised of deficiencies in performance and conduct (Indebtedness and unsatisfactory financial management.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900126:	Applicant to UA at 0631, 900126.

900226:	Applicant declared a deserter this date as of 0631, 900126.

920205:	Applicant from UA at 0900, 920205 (surrendered). 

920220:	Evaluation for Alcohol Dependence (In Remission).  Consultation Report:
	“This 24 year old, single, Caucasian, male, (Applicant) AD/USMC/PFC with 2 years of service was seen in consultation by HM1 P_, CDAC as the result of self-referral due to his thoughts of hurting himself and others around him.  The client recently returned from being UA for two years (Jan 90 – Feb 92).  The client states he went through Level-3 treatment at Long Beach Naval Hospital in 1989.  When the client went UA he states he started drinking again because of the pressure he was under.  The client states that his drinking was related to his co-dependency problem and his low self esteem in regards to females in his life.”
	Diagnostic Impression: Alcohol Dependence 303.90 (In Remission)
	Recommendations: Weekly AA meetings 4 times per week (monitored by Unit SACO.
	Get local sponsor.
	ACOA meetings 2 times per week.
	Co-dependency meetings (Brynn Marr Hospital)
	Weekly meeting with Unit SACO

920616:	DD Form 214: Applicant discharged this date by reason of conduct triable by courts martial (request for discharge for the good of the service), separation code KFS1, with a characterization of under other than honorable conditions.

Service Record Book did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920616 in lieu of trial by court-martial (A and B) 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 (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).

In his testimony to the Board, the Applicant stated that upon returning from a 740 day period of unauthorized absence he requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  The Applicant stated he understood the elements of the offenses with which he was charged.  He admitted he was guilty of violating Article 86, unauthorized absence for more than 30 days.

Equity – Alcohol problem: The Applicant contends that his problems with alcohol impaired his ability to serve.

Equity – Personal problems:  The Applicant contends that a personal situation, combined with work related stress and alcohol problems caused him to leave his unit.

While he may feel that his abuse of alcohol and his personal problems were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  During 1988, the Applicant was treated by competent medical authorities for anger management and stress issues, followed by his completion of Level III Alcohol Rehabilitation treatment in 1989.  The Applicant’s service was marred by 3 retention warnings and 2 nonjudicial punishment proceedings for violations of Articles 86, 92, and 134 of the UCMJ.  In addition, the Applicant pled guilty at a summary court-martial to violations of UCMJ Articles 107, 121, and 134.  Violations of UCMJ Articles 92, 107, 121, and 134 are all considered serious offenses for which a punitive discharge is authorized if adjudged by a special or general court-martial. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Equity – Post service: The Applicant states that he has maintained steady employment, that he has been clean and sober for 7 years, and that he served as a volunteer firefighter.

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 five employment related documents (certificates of promotion, appreciation, recognition) as documentation of post-service accomplishments.  The Applicant's efforts needed to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, documentation of community service, evidence of his participation in alcohol rehabilitation treatment, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.  Therefore, no relief will be granted.  

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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 86 (unauthorized absence for more than 30 days).

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.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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