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USMC | DRB | 2000_Marine | MD00-00992
Original file (MD00-00992.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD00-00992

Applicant’s Request
The application for discharge review, received 000815, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010215. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did find inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

1. I strongly feel that the type of discharge I recieved should be upgraded, because the reason I was discharged was because when I was sent to an alcoholic rehab program to Camp Pendleton, the counsolor diagnosed me as a person that didn't have a problem, and didn't need to be there. When I reported the news to my command they took it as I refused the service and didn't want to be there. I volunteered to go get the help and didn't have no problems in going there, I just did what the counselor told me to do. So my command decided to disharge me because they thought I didn't want to accept treatment. My service was always up to speed. I was always motivated, got along well with my peers and higher officials. My time of service included all benificial factors towards the Marine Corps, so please review my application and any questions that may need answering can be directed towards me. Thank you.

 Applicant marked the box for additional issues as an attachment to the application, but no were found.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of certificate of completion of Substance Abuse Education IMPACT course dated November 25, 1998
 Copy of letter of appreciation dated June 16, 1998
 Copy of letter forwarding letter of appreciation dated October 7, 1998
Copy of letter delivering letter of appreciation dated May 29, 1998 (2 copies)
 Copy of letter of appreciation dated May 19, 1998
 Copy of letter of appreciation dated May 19, 1998
Copy of letter delivering letter of appreciation dated May 26, 1998
 Copy of letter of appreciation dated June 16, 1998
 Copy of letter of appreciation dated May 22, 1998

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                970408 - 970504  COG
Period of Service Under Review :
Date of Enlistment: 970505               Date of Discharge: 991012

 Length of Service (years, months, days):
         Active: 02 05 08
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 53
Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (10)             Conduct: 3.8 (10)
Military Decorations: None

 Unit/Campaign/Service Awards: Letter of Appreciation (3)
Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.
Chronological Listing of Significant Service Events :

980902:  NJP for violation of UCMJ, Article 92 (0 specs):
 Specification 1: Violated CO P1630.38 by driving a vehicle while under 21 with a BAC of 0.07% on 0200, 20Aug98.
 Specification 2: Failed to obey BnO 1700.1D, by consuming alcohol while being under the legal age to do so on 20Aug98.
 Awarded forfeiture of $251.00 per month for 1 month, restriction and extra duties for 14 days. Forfeiture suspended for 6 months. Not appealed.
981022:  Counseled for deficiencies in performance and conduct. [Consumption of alcohol while under the legal age to do so and driving a motor vehicle with a blood alcohol content (BAC) of 0.07.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
981026:  NJP for violation of UCMJ, Article 92:
 Specification: Failed to obey BnO 1700.1F by consuming alcohol while being under the legal age to do so on 2015, 12Oct98.
 Awarded forfeiture of $519.00 per month for 2 months. Not appealed.
981217:  Counseled for deficiencies in performance and conduct. [On or about 12Oct98, knowingly failed to obey Bn Order 1700.1F by consuming alcohol while being under the legal age to do so.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
981218:  Counseled for deficiencies in performance and conduct. [Unauthorized absence from battalion restriction muster at 0900 on 981128, due to oversleeping.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
990512:  Counseled for deficiencies in performance and conduct. [On or about 0700 on 990507 knowingly failed to obey BnO 1700.1F by possessing liquor in your BEQ room.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
990602:  NJP for violation of UCMJ, Article 92:
 Specification: Failed to obey by driving with a .08% BAC on 2300, 21May99.
 Awarded forfeiture of $479.00 per month for 1 month, restriction and extra duties for 45 days. Not appealed.
990706:  NJP for violation of UCMJ, Article 134:
 Specification: Break restriction on 1400-1500, 27Jun99.
 Violation of UCMJ, Article 92:
 Specification: Disobey order, to wit: having been restricted from driving his or any POV on base, was seen driving a POV aboard MCAGCC on 1400-1500, 27Jun99.
Awarded forfeiture of $479.00 per month for 1 month, restriction and extra duties for 45 days. Suspended for 6 months. Not appealed.
990727:  Counseled for deficiencies in performance and conduct. [Alcohol abuse, and failure to obey rules and regulations, specifically, since 981022 you have acquired (4) page 11 entries, one of which was 6105 warning counseling, (4) nonjudicial punishment hearings, (3) of which were at Bn level. All NJP's and counseling entries relate to alcohol abuse and/or failure to obey rules and regulations. It is evident that after diagnosis by base SAPO as a alcohol abuser that your actions are a blatant mutiplicious misconduct acts totally within your control.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
990805:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
990805:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
990805:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was a culmination of violations of the UCMJ coupled with failure to correct deficiencies.
990902:  Applicant's conditional waiver of admin discharge hearing disapproved.

 990908:  Applicant waived right to an administrative discharge hearing.

990922:  SJA review determined the case sufficient in law and fact.

990923:  GCMCA [Commander, 1 st Marine Division (Rein)] directed the applicant's discharge 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 991012 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B). The Board presumed regularity in the conduct of governmental affairs (C). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper but not equitable (D and E).
In considering the applicant’s issue, the Board found the applicant’s assertion that he was not diagnosed with an alcohol problem to be contradicted by the record. The applicant was diagnosed as an alcohol abuser and failed to satisfactorily participate in the treatment directed. This failure alone is sufficient grounds for an involuntary separation under other than honorable conditions. The applicant’s statement, “ So my command decided to discharge me because they thought I didn't want to accept treatment.” accurately characterizes the command’s response to the applicant’s failure to participate in his prescribed regimen of treatment for his alcohol abuse. Relief on this basis is denied.
The Board also considered the applicant’s case under the pertinent standards of equity to determine if any factors in this particular case merited an upgrade. The NDRB found the applicant’s service record reflected mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. The Board noted the applicant’s superior performance reflected in his consistently high proficiency and conduct markings, as well as the outstanding service for which he received several Letters of Appreciation. While the facts of the applicant’s convictions at NJP are well established and the applicant did not successfully complete his enlistment, the Board believes the punishment imposed by four NJPs and an involuntary discharge under other than honorable conditions is excessively harsh for the nature of these UCMJ violations. While the Board does not condone under age drinking, there is nothing in the applicant’s record which indicates his performance of duty or the unit efficiency was negatively affected by these infractions. Except for these related incidents over a short period of time, the Board is confident the applicant would have continued to serve honorably and productively. Relief is granted on the basis of equity. The applicant’s request to upgrade the characterization of his discharge to General (Under Honorable Conditions) is granted. The narrative reason for separation will remain Misconduct.



Pertinent Regulation/Law (at time of discharge)
A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until Present.

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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