Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. MD12-00347

ex-Cpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20111122
Characterization of Service Received: (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: (per DD 214) MISCONDUCT
Authority for Discharge: (per DD 214) MARCORSEPMAN 6210.3 [PATTERN OF MISCONDUCT]

Applicant’s Request:	Characterization change to: HONORABLE
	Narrative Reason change to: GENERAL
	
Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20050329 - 20050912  COG	Active:	USMC  20050913 - 20080630 HON

Period of Service Under Review:
Date of Current Enlistment:  20080701	Age at Enlistment:  21
Period of Enlistment:  5 Years  3 Months
Date of Discharge:  20110325	Highest Rank:  CORPORAL
Length of Service:  02  Year(s)  08  Month(s)  24  Day(s)
Education Level:  12	AFQT:  53
MOS:  3531
Proficiency/Conduct Marks (# of occasions):  4.3 (6) / 4.1 (6)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM GCM SSDR (2) ICM GWOTSM NDSM NUC

Periods of CONF:  NONE

NJP:  1

- 20100126:	Article 86 (Absence without leave, 2 specifications)
	Article 91 (Insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer) 
	Article 92 (Failure to obey order or regulation, 2 specifications)
	Article 107 (False official statement)
	Awarded: FOP RIR  Suspended:  FOP RIR

SCM:  NONE	SPCM:  NONE	CC:  NONE

CIVIL ARREST:  1

- Date not found:  Charges:  Simple assault

Retention Warning Counseling:  4

- 20091204:	For unauthorized absence, poor judgment, and continued abuse of alcohol.  On 20091106, you were absent from your appointed place of duty as a result of a night of heavy drinking.  Previous actions in your continuous poor judgment in your personal affairs resulted in your being recommended for out-patient substance abuse.

- 20100126:	For violation of Article 86 x2, 91, 92 x2, and 107 of the UCMJ. 

- 20101102:	For poor judgment and continued abuse of alcohol.  On 20101106, Belton Police department responded to your residence for a domestic disturbance, upon arrival they found you heavily intoxicated and arguing with your spouse.  MSgt H_ arrived and escorted you from your residence and placed you in the BEQ for 

	the evening.  On 20101025 at approximately 0230, the Belton Police department responded to a domestic disturbance at your place of residence.  When the police arrived, both you and your wife were heavily intoxicated and arrested by the Belton Police department for domestic assault.  MSgt arrived at 0630 at the Belton Police department to take custody of you.  MSgt H_ noticed that you were still intoxicated at this time.  You attended outpatient alcohol treatment at Springs Behavioral Health System, Colorado Springs, CO from 20100201 to 20100301 due to prior alcohol-related incidents and your personal request for help.

- 20101214:	For demonstrating a pattern of misconduct in that you received a Page 11 for unauthorized absence, poor judgment, and continued alcohol abuse on 20101204. On 20100126 you received NJP for unauthorized absence, disobeying a lawful order, failure to obey regulation, and false official statement.  You relapsed and were absent from treatment and were arrested for simple assault.

Administrative Corrections to the Applicant’s DD 214

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

	Block 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 050913 UNTIL 080630”
	
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.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present. 

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 wants to be eligible for education benefits.
2.	The Applicant contends he is a recovering alcoholic who is currently in treatment, was discharged for failing Level III alcohol rehabilitation treatment, got into two domestic disturbances but was never found guilty in civilian court, served with dedication, and regrets that his alcoholism got in the way of his service.

Decision

Date:  20121212	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 MISCONDUCT.

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 four 6105 counseling warnings, one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, two specifications), Article 91 (Insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer), Article 92 (Failure to obey order or regulation, two specifications), and Article 107 (False official statement), and one civil arrest for simple assault.  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  When notified of administrative separation processing using the notification procedure, the Applicant waived his rights to consult with a qualified counsel and submit a written statement.

Issue 1:  (Nondecisional)  The Applicant wants to be eligible for education 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 re-characterization solely on the issue of facilitating access to VA benefits.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he is a recovering alcoholic who is currently in treatment, was discharged for failing Level III alcohol rehabilitation treatment, got into two domestic disturbances but was never found guilty in civilian court, served with dedication, and regrets that his alcoholism got in the way of his service.  The Applicant received an Honorable discharge for his first enlistment from September 2005 to June 2008.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  A review of the Applicant’s service records reveals that in his second enlistment, although he was notified of administrative separation proceedings for a Pattern of Misconduct and for Alcohol Rehabilitation Failure, the Separation Authority ultimately discharged him for a Pattern of Misconduct.  With his NJP, four retention warnings, and civil arrest, he met the requirements per the Marine Corps Separation and Retirement Manual for administrative separation due to a Pattern of Misconduct.  The NDRB determined that his alcoholism did not mitigate his misconduct and that he was responsible for his actions.  Further, the NDRB determined the discharge was proper and very equitable, as misconduct of this frequency and severity typically results in a characterization of service Under Other Than Honorable Conditions.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, 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 MISCONDUCT.  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 for additional information.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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