Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: chananuch.reed
Company: NCPB

Docket No. MD10-00913

ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received:  20100223
Characterization of Service Received: (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: (per DD 214) ALCOHOL REHABILITATION FAILURE
Authority for Discharge: (per DD 214) MARCORSEPMAN 6209 [ALCOHOL REHABILITATION FAILURE]

Applicant’s Request:	Characterization change to: HONORABLE
	Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20050709 - 20060618  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20060619	Age at Enlistment:  18
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20081007	Highest Rank:  LANCE CORPORAL
Length of Service:  02  Year(s)  03  Month(s)  19  Day(s)
Education Level:  12	AFQT:  74
MOS:  1371
Proficiency/Conduct Marks (# of occasions):  4.3 (6) / 4.1 (6)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle EX GWOTSM NDSM CoC

Periods of UA/CONF:  UA:  20080331, 1 day / CONF:  NONE

NJP:  2
- 20080416:	Article 92 (Failure to obey an order or regulation - 3 specifications)
	Awarded: RIR FOP EPD  Suspended:  FOP

- 20080702:	Article 92 (Failure to obey an order or regulation - found to be intoxicated and under the legal drinking age of 21)
	Awarded: FOP RESTR EPD  Suspended:  FOP

SCM:  NONE          SPCM:  NONE

CC:  1
-20080329:  Applicant was arrested by civilian authorities for driving under the influence (DUI).  At the time of his arrest he had a BAC of .191 and had two children in the car, ages 11 and 9 years old.  The Applicant was indicted by the Superior Court for two felony counts of aggravated DUI while a minor present and two felony counts of DUI with a minor present while having a BAC of .08 or more.  The Applicant pled guilty to these charges.

Retention Warning Counseling:  3
- 20080416:	For misconduct, specifically, on 20080329, you violated lawful orders, by consuming alcohol while a member of medical hold platoon, while underage, and by physically controlling a vehicle while under the influence of alcohol.  You were subsequently held responsible for your actions at NJP on 20080416.
- 20080701:	For underage drinking.
- 20080903:	As a result of a Line of Duty Investigation, your misconduct, specifically, on 20070826, you violated lawful orders by consuming alcohol while underage.  You consumed a minimum of 10 drinks, enough to raise your BAC to between .0907 and .103, which was a contributing factor in the subsequent incident where you fell off a balcony from a height of 13 feet and sustained significant injuries to your head.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	Block 13, Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “GLOBAL WAR ON TERRORISM, NATIONAL DEFENSE SERVICE MEDAL, CERTIFICATE OF COMMENDATION (Individual Award), LETTER OF APPRECIATION, EXPERT RIFLE BADGE”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:
	DD 214:	☒	Service/Medical Record:	☒	Other Records:	☐

Related to Post-Service Period:
	Employment:	☐	Finances:	☐	Education/Training:	☐
	Health/Medical Records:	☐	Rehabilitation/Treatment:	☐	Criminal Records:	☐
	Personal Documentation:	☐	Community Service:	☐	References:	☐
	Department of VA letter:	☐	Other Documentation:	☐
		Additional Statements:
	From Applicant:	☐	From/To Representation:	☐	From/To Congress member:	☒

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1600.19F), effective 1 September 2001 until Present, 
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, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

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

Applicant’s Issues

1.  The Applicant seeks a change in his RE-code in order to reenlist into the Armed Forces.
2.  The Applicant contends his discharge is inequitable, because he feels his separation was based on one man’s opinion.

Decision

Date:  20110414         DOCUMENTARY REVIEW          Location:  Washington D.C.          Representation:  NONE

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain ALCOHOL REHABILITATION FAILURE.

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Board did complete a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included three 6105 counseling warnings and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice: Article 92 (Failure to obey an order or regulation - 4 specifications: wrongfully consuming alcohol and found to be intoxicated, twice for wrongfully consuming alcohol while under the legal drinking age, and for wrongfully operating a motor vehicle while under the influence of alcohol).  Additionally, the Applicant was arrested by civilian authorities for driving under the influence (DUI).  At the time of his arrest, he had a BAC of .191 and had two children in the car, ages 11 and 9.  The Applicant was indicted by the Superior Court for two felony counts of aggravated DUI with a minor present and two felony counts of DUI with a minor present while having a BAC of .08 or more.  The Applicant pled guilty to these charges.  Based on the offenses committed by the Applicant, his command administratively processed him for separation twice.  He was notified the first time on 23 July 2008 of the administrative separation process using the administrative board procedure.  The Applicant exercised his rights to consult with a qualified counsel and to request an Administrative Separation Board (ASB), but waived his right to submit a written statement for consideration by the separating authority.  The Applicant appeared before the ASB on 25 July 2008.  The ASB determined by a unanimous vote (3-0) that the preponderance of the evidence supported the notification for separation (Pattern of Misconduct).  However, the ASB recommended that the Applicant should be retained in the Marine Corps.  Although the command disagreed with the ASB’s decision, the separating authority upheld the ASB’s decision to retain the Applicant.  The Applicant was assigned to the Level III Inpatient Substance Abuse Rehabilitation Program from 4 to 29 August 2008.  The Applicant was terminated from treatment as a treatment failure due to excessive infractions and minimal participation in treatment.  Due to being an alcohol rehabilitation treatment failure, the Applicant was notified a second time on 10 September 2008 of the administrative separation process.  Using the notification procedure, the Applicant exercised his rights to consult with a qualified counsel and to submit a written statement for consideration by the separating authority.  The Applicant was discharged on 7 October 2008 with a General (Under Honorable Conditions) characterization and a narrative reason of separation of Alcohol Rehabilitation Failure.

Issue 1:  (Nondecisional) The Applicant seeks a change in his RE-code in order to reenlist into the Armed Forces.  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records can make changes to reenlistment codes.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge is inequitable, because he feels his separation was based on one man’s opinion.  The Applicant had repeated instances of alcohol-related misconduct.  Despite a Marine’s prior record of service, certain serious offenses warrant separation from the Marine Corps in order to maintain proper order and discipline.  The Applicant’s command gave him multiple opportunities to control his substance abuse problem.  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.  The Applicant’s discharge characterization accurately reflects his service to this country and is actually more lenient than discharges given others with similar offenses.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and discharge process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain ALCOHOL REHABILITATION FAILURE.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Reenlistment/RE-code and Post-Service Conduct.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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.”

Additional Reviews:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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.

Employment/Educational Opportunities:  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the BCNR can make changes to reenlistment codes.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, to the extent 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 during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB 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

Key:	NFIR - Not found in record 	UA - Unauthorized absence	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW - Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water