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USMC | DRB | 2002_Marine | MD02-01058
Original file (MD02-01058.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-01058

Applicant’s Request
The application for discharge review, received 020717, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030410. 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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. I was not allowed to complete alcohol rehab treatment. Treatment was stopped because I was accused of fraternization with a Navy Corpsman, who was my fianc é , and later became my wife. If proper treatment had been given, and if I had the after care treatment that I needed, then I may have been successful in treating my alcohol dependency and completed my enlistment with an honorable discharge. This was the only issue of misconduct because I had exemplary job performance and attitude. In addition, I never drank during duty hours. I am submitting letters to back this up. I stopped drinking successfully for quite a while until I discovered my wife was having multiple affairs with other military personnel at 29 Palms, CA while I was out in the field and that is when I relapsed. I was offered a General under Honorable Conditions discharge in November, 2000, but choose to stay in the Marine Corps because of my love for the Marine Corps, and I wanted to finish my enlistment. By getting a discharge upgrade, I would be able to receive the treatment that was not completed at Great Lakes Naval Hospital. My personal problems never affected my duty as a Marine In the 3 1/2 years that I served. I could always be counted on to do an outstanding job.

 2. Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Naval Discharge Review Board of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in his request that he be given the opportunity to upgrade his (Under Other Than Honorable Conditions) Discharge to a Honorable Discharge. The (FSM) entered the Marine Corp on February 23, 1998 until August 27, 2001 a period of only (3) years and (6) month. During this (FSM) enlistment he was recommended for a term of treatment at a military facility alcohol program. The (FSM) conduct during that term of alcohol treatment is why the (FSM) is requesting that he be given consideration for his discharge upgrade. The (FSM) states his treatment was terminated due to his continued relationship with a female corpsman, who worked at the alcohol Program. The (FSM) states due to his inability to handle his problems in the military were the reason he was placed in the alcohol treatment program. After being terminated he continued to encounter the same problems prior to this termination of his alcohol treatment program. The (FSM) feels the termination of his drug treatment lead to his continued behavior and negative conduct that he was eventually was charged with in his NJP violations. The (FSM) also claims that his alcohol abuse can be contributed directly to the actions of his ex-wife, who he found out from field was having multiple affairs with other serviceman when he was out in the field .

Another area of contention is that the (FSM) received a total of (7) seven NJP violations since enlistment in 1999. Most of the NJP violations were due to his use of alcohol and related behaviors. On February 1999 the (FSM) was diagnosed as being alcohol dependent. The (FSM) was subsequently charged with continued violations of violations of failure to obey a lawful order not to consume alcohol beverages.
The (FSM) now seeks to show the Marine Corp Discharge Review Panel that he had corrected his immature behaviors and his inability to handle the day to day stresses of his life that lead him to drink and act out and exhibit negative behaviors during his active military service. The (FSM) now respectfully requests an equitable standard be applied as well as equity in treatment in seeking the boards' approval to afford him the opportunity to receive and an up-grade of his (Under Other Than Honorable Conditions) Discharge to an Honorable Discharge. The (FSM) feels his military accomplishments of service are a matter of Supreme Honor and Respect be will cherish throughout his lifetime- The (FSM) also states he had always tried to achieve Honor and Respect during his almost entire term of enlistment of military duty in the Marine Corp, but failed to complete his term of service. We respectfully request that the (FSM) be given complete and duly consideration by the board. We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to seek to correct the mistakes he made in receiving the continued violations of NJP offenses that he was charged with and him receiving -grading his (Under Other Than Honorable Conditions) Discharge he received in fulfilling his military duty in the United States Marine Corp. We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant. Respectfully,


 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant 's DD Form 214 (2 copies)
Letter to Applicant dated August 6, 2001
Fourteen pages from Applicant 's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                980129 - 980222  COG

 Period of Service Under Review :
Date of Enlistment: 980223               Date of Discharge: 010827

 Length of Service (years, months, days):

         Active: 03 06 05
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 59

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                          Conduct: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: Letter of Appreciation

 Days of Unauthorized Absence: None

*No Marks Found in the service record.

 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 :

980722:  NJP for violation of UCMJ, Article 92:
 Specification: Failure to obey a lawful general order on 2330, 980718, to wit: MCO 1700.22D, by wrongfully possessing and consuming alcoholic beverages prior to being of legal age.
Violation of 134: Disorderly when he failed to cooperate with military authorities on 2330, 980718.
Awarded forfeiture of $463.00 per month for 2 months, correctional custody for 30 days. Forfeiture for 1 month suspended for 6 months. Not appealed.
981023:  Vacate suspended forfeiture awarded at CO's NJP dated 980722.

981023:  NJP for violation of UCMJ, Article 92:
 Specification: Failure to obey a lawful General Order on 0400, 981018, to wit: MCO 1700.22D, by wrongfully possessing and consuming alcoholic beverages prior to being of legal age.
Awarded forfeiture of $463.00 per month for 1 month, restriction for 45 days. Not appealed.
981028:  Counseled for deficiencies in performance and conduct. [Inability to follow simple instruction, judgment, and disobedience. These deficiencies were demonstrated when Applicant knowingly consumed alcohol underage on two separate occasions which resulted in two separated Article 15.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
981120:  NJP for violation of UCMJ, Article 91:
 Specification: Disrespectful in language and gesture toward an NCO on 0100, 981115.
Violation of UCMJ, Article 92:
Specification: Failure to obey a lawful general order, to wit: MCO 1700.22D, by wrongfully possessing and consuming alcoholic beverages prior to being of legal age.
Violation of UCMJ, Article 134:
Specification: Drunk and disorderly on 0100, 981115.
Awarded Restriction and extra duties for 14 days. Not appealed.
990816:  NJP for violation of UCMJ, Article 92:
 Specification: Knowingly failed to obey BnO 1700.1F, by consuming alcoholic beverages while being under the legal age to do so on 0900, 990802.
Awarded forfeiture of $479.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt. Restriction and extra duty for 45 days suspended for 6 months. Not appealed.
990909:  Counseled for deficiencies in performance and conduct. [Failure to obey orders and lack of judgment. These deficiencies were demonstrated when Applicant knowingly consumed alcohol while under the legal age which resulted in Battalion Office Hours on 990816.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000726:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 0630, 000717.
Violation of UCMJ, Article 92:
Specification: Willfully fail to obey MCO 1700, by consuming alcohol while being under the legal age to do so.
Awarded forfeiture of $563.00 per month for 2 months, restriction and extra duties for 30 days, reduction to PFC. Not appealed.
001201:  GCMCA [Commanding General, 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. The discharge is suspended for 6 months, unless sooner vacated.

 010319:  NJP for violation of UCMJ, Article 134:
 Specification: Disorderly conduct at Kickers.
Awarded forfeiture of $521.00 per month for 2 months, restriction and extra duties for 45 days, reduction to Pvt. Not appealed.
010726:  NJP for violation of UCMJ, Article 86:
 Specification: Failure to go at the time prescribed to appointed place of duty on 010716, to wit: company muster.
Violation of UCMJ, Article 92:
Specification: Disobeyed a lawful order issued by LtCol and Capt on 010715, to wit: not to consume alcoholic beverages.
Awarded forfeiture of $482.00 per month for 2 months, restriction for 60 days. Forfeiture suspended for 6 months. No indication of appeal found in service record.
010730:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
010730:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010801:  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 NJP's of 22 July 1998, 23 October 1998, 20 November 1998, 16 August 1999, 26 July 2000, 20 March 2001, and 26 July 2001. In addition, 6105 entries of 28 October 1998 and 9 September 1999.

010815:  SJA review determined the case sufficient in law and fact.

010815:  GCMCA [Commanding General, 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 010827 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 and equitable (D and E).

Issues 1 and 2. The Applicant failed to provide verifiable documentation that his failure to complete alcohol rehabilitation treatment was due to an impropriety or inequity committed by the government. The official record implies that his failure to complete treatment was due to the Applicant’s failure to follow the regulations concerning the treatment program. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on seven occasions and adverse counseling entries on other occasions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade would be inappropriate. The documentation provided that attests to the Applicant’s solid performance while in a duty status does not mitigate his misconduct. While he may feel that his alcohol dependence and marital problems were factors that contributed to his actions, the record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Board found no indication that the Applicant was offered a discharge under honorable conditions (general) in November of 2000. Even if it were true, the Applicant’s subsequent misconduct while serving under a suspended discharge would fully warrant a final discharge under other than honorable conditions. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. Relief not warranted.

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. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until Present.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 86, unauthorized absence; Article 92, failure to obey a lawful general order; Article 134, drunk and disorderly.
C. 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.

D. 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.

E. 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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