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USMC | DRB | 1999_Marine | MD99-01185
Original file (MD99-01185.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD99-01185

Applicant’s Request
The application for discharge review, received 990903, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The applicant listed DISABLED AMERICAN VETERANS as his representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 001107. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned there was no impropriety but there was inequity in the characterization of the applicant’s service. The Board’s vote was 3 to 2 that the character of the discharge shall change to: HONORABLE/Alcohol Abuse Rehabilitation Failure (administrative discharge board not required), authority: MARCORSEPMAN Par. 6209.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I would like to respectfully request that my discharge from the United States Marine Corps on 19911011 be upgraded from it's current "General Under Honorable Conditions" to "Honorable".

2. Additionally, I would like to respectfully request that my RE-ENLISTMENT CODE be upgraded fro it's current "RE4" status to an "RE1a" so that I may rejoin the USMC as an active reservist and continue to support my country.

3 .To United States Armed Forces Discharge Review Board:

My name is D___ L__ C___ and my SSN is-----. I served in the United States Marine Corps from 12-31-85 through 10-1 1-91. I accepted a "General Under Honorable Conditions" discharge and an RE-4 reenlistment code eighty- (80) days prior to the end of my current contract. The reason listed on my discharge paperwork, to the best of my knowledge, is failure to successfully complete Level 11 Substance Abuse Treatment. The Level 11 treatment was given to me during an NJP for driving under the influence of alcohol on board Camp Pendleton, California in March of 1990. Prior to me being able to attend and complete the prescribed Level 11 treatment, I was ordered to Desert Shield and subsequently Desert Storm. I stayed in the theater of operations from 8-15-90 through 3-13-91. Alcohol was not allowed in Saudi Arabia as it is against their religious beliefs and practices. That was fine by me because I did not think then nor do I believe now that I have a "drinking problem". Upon my return to the United States from the Persian Gulf War, I met with the 9th CommBN Substance Abuse Control Officer. He informed me that I still had an obligation to complete the Level R treatment, but that he was not going to push the issue since my return from the war and his observation(s) of my behavior as well as conversations that he had with others from within my platoon. I immediately said thank you to the Staff Sergeant (I do not remember his name), but I told him that I am a man and Marine of my word and that I would attend the class as agreed upon. Through this two- (2) week training the instructors taught us a lot about health and nutrition and what alcohol can do to you. Naturally, they also asked why each individual was there. When I mentioned that I was fulfilling a promise to attend the course after having served in the Persian Gulf War and not having had any alcohol for the past eight (8) months, the counselors met with me in their office. During that meeting and having completed 1.5 weeks of the training, the counselors told me that they did not believe that I had any problem with alcohol and were going to return me to my platoon. I asked them if I could finish, since we were so close to completion, but they said no because they needed to devote their time and attention to those who really needed help. The counselors sent me on my way with the standard paperwork saying that I did not complete the course. My platoon commander, 1st Lt. R.J. F_____, took that to mean that I failed and promptly processed the paperwork to kick me out of the Marine Corps. His Justification was failure to complete Level 11 Substance Abuse Treatment and also because I had had two- (2) prior NJP's four- (4) years earlier for bad checks. Those two (2) previous NJP's came within nine- (9) days of each other because I had had a checkbook stolen.

As a result of the legal process against me, I went to speak with a Military Lawyer. This lawyer, a Captain in the USMC, informed me that he believed that this discharge process was frivolous and that one of two things would happen:

1.)      Either my End of Active Service date would arrive and I would receive and Honorable discharge or,
2.)      The Administrative Discharge Review Board would dismiss this case because it did not have any real tangible substance.

Taking my lawyers' advice, I returned to my platoon and continued to carry out my duties in the same manner that I always had-to the best of my God given ability.

Unfortunately, my platoon commander did not like those results and he proceeded to try and make me screw up so that he would have more justification for the process. He had the company's Executive Officers', Captain M____, approval to proceed while the company's Commanding Officer, Major February, was on leave. After approximately one month to six weeks I felt that I was being harassed unjustly and also that I was being provoked into trying to do something that would have gotten me into more trouble. Rather than give in however, I proceeded to contact my lawyer and he made a call to both my platoon commander and company executive officer and asked them to lay off their tactics toward me because they were futile in nature and would not accomplish what they were seeking. That did not deter them, however. And after another four to six weeks of the same treatment, I again went back to my lawyer and asked for his help. At that point, he suggested that the only way for me to really stop their harassment of me was to take an early out. He suggested an administrative separation from the USMC. He told me that it would be a "General" discharge and I replied that I would not accept anything less than "General Under Honorable Conditions". In accordance with my discharge, my reenlistment code was set at RE-4. At the time, I did not even notice it and under the circumstances, at 23 years of age, I was just plain tired of fighting the issue. I turned 24 about two weeks later and eight days after my 24h birthday I was discharged.

The purpose of this letter is not to say that I was wronged in any way, shape, or form. Nor is the purpose of this letter to say that someone "was out to get me" though I know the previous paragraph must sound like that. The real purpose of this letter is to say that I made some mistakes when I was younger, but I learned from them and grew. I have been out of the Marine Corps for almost eight- (8) years now. In that time, I have not had any trouble with the law, I have completed my college education, and I have been successfully and am gainfully employed. I have changed jobs over the years, accepting more challenging and financially rewarding positions in the Information Technology 91
industry. I have married and am raising my 4-year-old son. What I am respectfully requesting is that my discharge be upgraded to a regular "Honorable" and that my reenlistment code be upgraded from its current RE-4 to RE- Ia. I am offering as evidence the following pieces of information:

1.)      This letter.
2.)      A copy of my current resume to signify my advancements in my career.
3.)      A letter from my current employer.
4.)      A clearance letter from the Milford Police Department, in Milford Michigan, where I now live.
5.)      A clearance letter from the Novi Police Department in Novi Michigan, one of my past residences.
6.)      A clearance letter from the Oakland County Sheriffs Department since I have lived in Oakland County for almost five (5) years now.
7.)      Completed DD FORM 293, APPLICATION FOR THE REVIIEW OF DISCHARGE OR DISMISSAL FROM THE ARMED FORCES OF THE UNITED STATES.

If any additional information is required, I will gladly supply it if requested. Thank you for your time and consideration in this matter.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Resume (3pgs)
Criminal Record Request (3)
Employment Verification Letter
Response to Request for information Letter

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                850518 - 851230  COG

 Period of Service Under Review :
Date of Enlistment: 851231               Date of Discharge: 911011

 Length of Service (years, months, days):

         Active: 05 09 12
         Inactive: None

 Age at Entry: 18                          Years Contracted: 6

 Education Level: 12                        AFQT: 75

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (10)                      Conduct: 4.0 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NDSM, SASMw2*

Days of Unauthorized Absence: 1

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 :

871014:  NJP for violation of UCMJ, Article 123a: (6 Specs), Uttered worthless checks at MCEX between 870810 and 870909.
 Awarded forfeiture of $200.00 per month for 2 months (suspended for 6 months), restriction and
extra duties for 45 days, reduction to PFC.. Not appealed.
871023:  Forfeiture of $200.00 per month for 2 months awarded and suspended at NJP ON 871014 vacated.
871023:  NJP for violation of UCMJ, Article 86: UA 871017-871018 (1day/U); violation of UCMJ, Article 123a: (3 Specs): Uttering worthless checks at MCEX between 870918 and 870921.
 Awarded Correctional Custody for 30 days, forfeiture of $150.00 per month for 2 months (suspended for 6 months), reduction to PVT, restriction and extra duties for 00 days. Not appealed.
871023:  Previous punishment imposed on 871014 deferred until completion of CCU on 871121.

871124:  Counseled for deficiencies in performance and conduct. [Repeated violation of orders] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

880407:  Not recommended for promotion to Private First Class due to destruction of public telephone.

890510:  Counseled for deficiencies in performance and conduct. [Lack of preparedness for Platoon Personnel Inspections] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900411:  Counseled for deficiencies in performance and conduct. [Alcohol related incident, specifically: DUI on 900313 BAC of .12% (on Base)] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900727:  NJP for violation of UCMJ, Article 111: Operated a motor vehicle while under the influence of alcohol, with a BAC level of .12%, on 900311, on MCB, Camp Pendleton, CA.
 Awarded forfeiture of $405.00 per month for 1 months (suspended for 6 months), extra duties for 45 days. Not appealed.
910429:  Commenced Level II treatment.
910530:  Failed Level II treatment. The applicant was disruptive throughout the course of treatment, to the class and guest speakers. He refused to keep an open mind. Determined not to be amenable to treatment. Prognosis: Poor, should be held responsible for his actions. The applicant entered Level II treatment on 29 April 1991 for 2 weeks of treatment. From the beginning of the class the applicant stated he did not want to be in Level II but needed a Certificate of Completion.

910617:  Commanding officer recommended applicant for discharge Under Honorable Conditions (General)/Misconduct (Pattern of Misconduct and Level II Alcohol Treatment Failure).
        
910701:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of Misconduct (Pattern of Misconduct and Alcohol Rehabilitation Failure).
910708:          Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.

910730:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct and Level II Substance Abuse Treatment Failure. The factual basis for this recommendation was your three NJP's and driving under the influence of alcohol.

910820:  Applicant further offered to waive an ADB provided the command's recommendation for no less than a General discharge due to alcohol rehabilitation failure.

910829:  SJA review determined the case sufficient in law and fact.

910910:  GCMCA [Commanding General] directed the applicant's discharge under Honorable conditions (General) by reason of Alcohol Abuse Rehabilitation Failure.
930512:  NDRB documentary record review Docket Number MD93-00860 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 911011 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 applicant’s service records and other evidence presented to the NDRB, in conjunction with consideration of the factors listed in paragraph 9.3 of the DON Manual for Discharge Review, it was determined that relief is warranted under equitable grounds, even though the discharge was determined to be otherwise equitable and proper at the time of issuance (C and D).

Issues 1 and 3. The Board granted the applicant’s request to upgrade the characterization of his discharge to Honorable, based on equity, as stated in the discussion above.

Issue 2. The NDRB does not have authority to change the applicant’s reenlistment code. The applicant must petition the Board of Correction Of Naval Records with this request. Relief denied.

 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 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “ afls14.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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