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USMC | DRB | 2002_Marine | MD02-00737
Original file (MD02-00737.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD02-00737

Applicant’s Request
The application for discharge review, received 020426, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant listed the North Dakota Department of Veteran Affairs as the representative on the DD Form 293. Subsequent to the application, the Applicant changed representation to the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030228. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/ALCOHOL REHABILITATION FAILURE, authority: MARCORSEPMAN Par. 6209.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. (Equity Issue) This former member avers family problems contributed to and sufficiently mitigated his misconduct of record to warrant upgrade of his characterization of service.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
Statement in support of claim from Applicant dated March 27, 2002
Statement from Applicant, undated
Character reference from New Town Public School principal dated March 7, 2002
Character reference from New Town News editor dated February 25, 2002
Character reference from Three Affiliated Tribes councilman dated February 25, 2002
Certificate from United Tribes Technical College dated May 8, 1998
Letter from Minot State University, Transfer Specialist dated March 14, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                910923 - 920817  COG

 Period of Service Under Review :
Date of Enlistment: 920818               Date of Discharge: 950908

 Length of Service (years, months, days):

         Active: 03 00 21
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 74

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (6)                       Conduct: 4.2 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/ALCOHOL REHABILITATION FAILURE, authority: MARCORSEPMAN Par. 6209.

 Chronological Listing of Significant Service Events :

940110:  Applicant screened by substance abuse counselor and found to be alcohol dependent. Recommendations: Evaluation by medical officer. Level III rehabilitation treatment at ARD. Applicant ordered to attend 3 Alcoholics Anonymous meetings weekly until treatment.
940401:  Dependency evaluation: Alcohol dependent. Recommendations: Alcoholics Anonymous, Level III alcohol rehabilitation, and abstinence.
940502:  NJP for violation of UCMJ, Article 91:
 Specification: Disrespectful in language toward a noncommissioned officer by saying, "fuck you" on 940423.
Awarded forfeiture of $226.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
940908:  Applicant released from the Consolidated Substance Abuse Control Center, Camp Pendleton, CA portion of Level III alcohol abuse rehabilitation aftercare due to unwillingness to participate in his recovery. SNM was absent from his assigned formal aftercare treatment. Prognosis for sobriety specified as "poor". Director, CSACC recommends that Applicant's command review his case with respect to discharge/retention in active duty.

941223:  Command Substance Abuse Control Officer comments: "SNM was told to report to his Bn SACO for Mandatory treatment. Lcpl M_ has fail to comply with his Treatment he has not reported in to his Bn SACO in three months. SNM does not seem to want help and should be discharge from the Marine Corps."
950124:  Counseled for deficiencies in performance and conduct (Failure to comply with the UCMJ. Unsuccessful completion of Level III alcohol rehabilita-tion due to unwillingness to participate in his own recovery. Lack of good judgment and personal perseverance). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950214:  Applicant signed Veterans Administrative statement of understanding. Applicant declined VA treatment in conjunction with discharge.

950323:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

950428:  Applicant notified of intended recommendation for discharge with a characterization of general (under honorable conditions) by reason of aftercare program failure. The factual basis for this recommendation was the Applicant's inability to complete his alcohol rehabilitation aftercare program. The Applicant's failure to conform to Marine Corps standards and his unwillingness to adhere to Marine policy regarding alcohol abuse make any attempt at rehabilitation inappropriate. By the Applicant's actions, he has demonstrated that he has no potential for further military service.
950428:  Commanding Officer recommended to the separation authority discharge with a characterization of general (under honorable conditions) by reason of failure of aftercare program.

950828:  GCMCA (Commander, 1 st Marine Division (Rein), Camp Pendleton, CA) directed the Applicant's discharge with a characterization of general (under honorable conditions) by reason alcohol rehabilitation failure.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 950908 general (under honorable conditions) due to alcohol abuse rehabilitation failure (A). The Board presumed regularity in the conduct of governmental affairs (B). 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).

Issue 1: The Applicant contends that family problems at the time of his enlistment contributed to his misconduct and that these problems should be taken into account in assessing an upgrade to his discharge. Personal problems that a Marine faces while on active duty, however, do not mitigate any misconduct undertaken by that service member. There is credible evidence in the record that the Applicant did violate the UCMJ and that he was accountable for his actions. This evidence of misconduct warranted a characterization of service normally under less-than-honorable conditions. The Board recognizes that serving in the Marine Corps is very challenging but it must be noted that most Marines serve honorably and well and, therefore, earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. The Applicant’s service is equitably characterized as general (under honorable conditions) due to the Applicant's nonjudicial punishment, derogatory Page 11 entry, and four recommendations for discharge from his immediate chain-of-command. Relief on this basis is denied.

Issue 2: The Applicant requests that the Board consider post-service conduct in determining if an upgrade of his characterization is warranted. While the NDRB is authorized to consider post-service factors in the recharacterization of a discharge, 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 in the civilian life subsequent to leaving the service. 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, may be considered. Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. E vidence of continuing educational pursuits, an employment record, documentation of community service, and certification of non-involvement with civil authorities are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade. Relief denied.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. Representation at a personal appearance hearing is recommended but not required.


Pertinent Regulation/Law (at time of discharge)

 A . The Marine Corps Separation and Retirement Manual, (MCO P1600.19E), effective 950818 until Present, 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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