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USMC | DRB | 2003_Marine | MD03-00157
Original file (MD03-00157.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD03-00157

Applicant’s Request
The application for discharge review, received 20021101, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030926. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 received awards and decorations
 - National defense and overseas deployment ribbons and jungle warfare training award.

2. My ability to serve was impaired by my youth and immaturity.
3. My alcohol usage impaired my ability to service
 - Alcohol is the main factor in my discharge decision
4. I have been a good citizen since my discharge.
 - I have been volunteering all of my free time to people who have abused alcohol as I had in the past.
- I have worked my way up to a supervisor position with my present employer, Champion Environmental Svcs, Inc.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s Personal letter to the Board, dtd Jul 28, 2002
Letter of Employment, Hampton Environmental Services, Inc., dtd Jul 29, 2002
Character Reference letter from Healthcare Alternative Systems, dtd Mar 13, 2002
59 pages from Service Record Book

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR (J)               970418 - 970527  COG

 Period of Service Under Review :
Date of Enlistment: 970528               Date of Discharge: 990419

 Length of Service (years, months, days):

         Active: 01 10 22
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rank: LCPL

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.85 (6)                      Conduct: 3.78 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

 Days of Unauthorized Absence: None (Pg. 12 shows 5 days UA – 0701, 990309 to 1300, 990313)

 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 :

 980102:  Emergency Care & Treatment, NMC San Diego, CA: Pt is 22 year old male who went to Tijuana at approximately 5 o’clock yesterday afternoon and at approximately 5:30, he remembers being assaulted by group of individuals who took his watch, jewelry and money. He remembers that that occurred at approximately 1730 and he awoke in an alley at about approximately 1930, and that is all that he remembers. Since that time he has been wandering around in Tijuana and had a few drinks and was found by the Federales and brought to the border where they called 911.
         Pt admitted to the Emergency Department. He had an IV started with lactated Ringer’s placed at KVO. Pt is being admitted for observation.
         Assessment: Status post assault.

980224:  Emergent Psych Eval: Pt is a 22-year-old Mexican, single male. Pt was seen in the E.R. on 23 Feb 98 due to alcohol intoxication. Pt presented to the MHD with BAS escorts. Pt stated that for the past 2½ months he has been feeling homesick. Pt stated that his appetite has decreased, decreased concentration, frequent daydreaming & decreased sleep, and increased alcohol intake. Pt stated that for the past month he consumes at least a case of beer each day of the weekend, (Friday, Saturday & Sunday). Pt reported history of disciplinary/legal problems due to his drinking behaviors, e.g. fighting. Loss of friends, arrests, DUI in Sep 96. Pt stated that he prefers to be alone on the weekends so that he can sit, drink, and brood. Pt stated he allegedly tried to see his SAC for his drinking problem but Sgt D_ denied him the right to treatment. Pt was born & raised in Mexico with 1 brother and 1 sister by his biological parents. Pt denied past sexual, physical, mental/emotional abuse. Pt denied any past history of psychiatric treatment for self/family. … Pt stated that he smoked 1 pack of cigarettes a week. Pt stated he tried cocaine twice at the age of 20 years but denied history of other drug use/abuse. Pt denied any history of arrest except one for DUI. Pt stated he is currently involved with a girlfriend who is currently pregnant with his child who lives in Chicago. Pt denied NJP’s or pending legal trouble. Pt denied suicidal ideation/homicidal ideation … Memory/reality testing intact.
         Diagnosis: AXIS I: (1) Alcohol Abuse; (2) Adjustment Disorder with Depressed mood. AXIS II: Rule out Personality Disorder. AXIS III: No diagnosis.
         Plan: Case staffed with Dr. M_. Pt is fit for full duty and is responsible for his own actions. Pt to follow-up in group therapy 3 times a week. Pt to follow-up with Dr. M_ on 3 Mar 98 at 0800. Pt to follow-up with his SAC at 1400 24 Feb98. Pt understood and concurred with above plan.
980225:  Naval Hospital, 29 Palms, Mental Health Dept: Group Therapy – Pt participation fair. Pt’s communication or expression of thought described as pt discussed the issues that brought him to the Mental Health Clinic. Pt interacted well with staff and peers throughout group. Pt’s taking responsibility was fair. Plan: Continue group.
980303:  Naval Hospital, 29 Palms, Mental Health Dept: No show.

980306:  Naval Hospital, 29 Palms, Mental Health Dept: Group Therapy – Pt participation good, tracked group topic and ventilated. Pt’s communication or expression of thought described as talked about being stuck in the Corps versus being discharged and returning home to Chicago. Pt’s taking responsibility was poor. Member appears non-motivated to improve his situation. Plan: (1) Member was given homework for over the weekend. He is to think of a way to deal with his situation and present it in the next group. (2) Continue group as scheduled.
980318:  Naval Hospital, 29 Palms, Mental Health Dept: Group Therapy – Pt participation good even though he was the only one who showed up. Pt’s communication or expression of thought described as worried. Member is worried about the Sgt (who gave him a hard time) returning next Thursday. Pt’s level of taking responsibility was poor due to preoccupying self with fear of possible future events. Plan: (1) Encourage ways to deal with his fears. (2) Continue group as scheduled.
980325:  Naval Hospital, 29 Palms, Mental Health Dept: Group Therapy – Pt participation fair, Pt only interacted in group when called upon & drawn into the conversation. Pt’s progress toward treatment goals is fair and pt still acts in a very dependent manner. Continue group therapy.

 980327:  NJP for violation of UCMJ, Article 134: At 1315, 23 Mar 98, with a BAC of .326 as a result of previous indulgence in intoxicating liquor was incapacitated for proper performance of duties.
 Awarded forfeiture of $242.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
980409:  Naval Hospital, Camp Pendleton, CA: 23 year old single male … entered into partial hospitalization at the Naval Addictions Rehabilitation and Education Department on 09 April 1998 with a diagnosis of alcohol dependence. He had been referred by his command for receiving Fit for Duty Exam while in Level II and requesting more help. …
Exit Diagnoses: (1) Alcohol Dependence, (2) Tinea Corporis
Exit Medications: Antabuse 250mg po qd (at pt’s request), Spectozole cream use bid for 3-4 weeks.
Disposition: Pt is returned to duty (regular diet and no physical activity limitations) to be placed in a formal one-year recovery program. Should include command monitored attendance at a minimum of three AA meetings weekly, and regular follow-up with his SACO.

980429:  Returned to duty.

980811:  Counseled for deficiencies in performance and conduct [Your alcohol related incident on 980802, specifically your consumption of alcohol and subsequent injury in Barracks 1443]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980828:  Counseled for deficiencies in performance and conduct [Your failure of the Level III Intense Outpatient Treatment Program. This is a result of your alcohol related incident on 980802, specifically your consumption of alcohol and subsequent injury in Barracks 1443, MCAGCC 29 Palms, CA]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
980910:  Applicant given a Revised Continuing/After Care Treatment Plan from SACC requiring member to meet with Command’s SACO on weekly basis, attend at least 5 AA meetings a week, during the 12-month continuing care period, participate in formalized counseling at the ARD, report to Case Manager for follow up appointments biweekly, report to BAS and ask for consult to be written to be prescribed Antabuse.

980920:  Camp Schwab Branch Clinic: 23 year old Hispanic male with complaint of taking Antabuse and is intoxicated. Presented to dispensary with platoon HM who relates a history of drinking last night 4 – 5 beers and vomiting. Denies losing consciousness. Did consume ETOH today, 3-8 beers this afternoon.
         Assessment: Possible ETOH reaction while taking Antabuse. ETOH Intoxication.
         Plan: Send home and follow-up in A.M. with medical officer.

980921:  Follow-up this AM for alcohol intox yesterday. It’s now clear that individual did not take prescribed Antabuse. I will not prescribe it again to this individual. I do not feel his is done drinking. Discussed the worthiness of AA meetings and his willingness to go. Agreed that would be most beneficent to him.
981028:  NJP for violation of UCMJ, Article 92 (3 specs): Did at Camp Schwab, Okinawa 980906, 980920 and 981014 disobeyed written order BnBul 1050 of 980724 by consuming alcohol while on the Liberty Risk Program; violation of UCMJ, Article 134: At 2145 on 980906 as a result of intoxicating beverages, was incapacitated while on duty as the company fire watch.
 Awarded reduction in pay grade to E-2, forfeiture of $519.00 per month for 2 months, restriction and extra duties for 45 days. Not appealed.

 981202:  CO, U.S. Naval Hospital, Okinawa, advises Applicant’s command CO, MTACS 18, that the Applicant was terminated from rehabilitation treatment because of failure to follow his prescribed continuing care program. Service member evidenced a return to past abusive alcohol consumption. Member is diagnosed as alcohol dependent, and after numerous interventions to assist member in remaining abstinent, it appears that he has no desire to remain abstinent. Recommend member be processed for separation as alcohol treatment failure.
981228:  Counseled for deficiencies in performance and conduct [Your continued failure of the Level III Intense Outpatient Treatment Program. This is as a result of your alcohol related incident on 981227, specifically your consumption of alcohol and subsequent room damage in Barracks 3625, Room 237, Camp Schwab, Okinawa]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
981230:  NJP for violation of UCMJ, Article 92: On 981212, at 2000, violated BnBul 1050, by consuming alcohol in the barracks; violation of UCMJ, Article 108: On 981227, at 0240, damage by throwing a chair at it, one window valued at $90.00, military property of the United States.
 Awarded reduction in pay grade E-1, forfeiture of $463.00 per month for 2 months, restriction for 60 days. Not appealed.
990104:  Counseled for deficiencies in performance and conduct [Your continued pattern of misconduct, which is a matter of record, and your continued failure to the Level III Intense Outpatient Treatment Program. This is as a result of your alcohol related incident on 981227, specifically your consumption of alcohol and subsequent room damage in Barracks 3625, Room 237, Camp Schwab, Okinawa]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
990106:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol rehabilitation failure and misconduct, specifically failing aftercare treatment and a pattern of misconduct respectfully.

990106:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board and the right to obtain copies of the documents used to support the basis for the separation.
990125:  Commanding Officer recommended discharge under other than honorable conditions by reason of alcohol rehabilitation failure and misconduct, specifically failing after care treatment and a pattern of misconduct. The factual basis for this recommendation is the respondent’s failure to conform to Marine Corps standards, has demonstrated a patter of alcohol abuse, which has lead to his established pattern of misconduct.

990322:  Sick Call: 23-year-old male follow-up. Competence for duty ETOH intox BA 172 CK 277. I drink to escape my pain. I had 2 glasses of hard alcohol at 2000 with my dinner. Pt states I had no medical problem. In MCRD I was third in my class … Pt has no tremors at this time, regular pulse, pt has not ideas of suicide or homicidal at this time. Will consult to mental health.

990304:  Applicant acknowledged understanding that he was being processed for administrative separation based upon a pattern of misconduct and alcohol treatment failure and acknowledged he was recommended for an Under Other Than Honorable Conditions characterization of service. Having consulted with defense counsel, Applicant waived his rights to an administrative discharge hearing and this waiver supersedes previous acknowledgement of rights requesting a board.

990309:  Unauthorized absence from organization since 0701.

990313:  Surrendered at 1300, this date.

990406:  SJA review determined the case sufficient in law and fact.

990407:  GCMCA [CG, 1 ST MARDIV (Rein), Camp Pendleton, CA] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and by reason of alcohol rehabilitation failure with the primary basis for separation as misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990419 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, 2, & 3: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel that his youth and immaturity were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service. His failure to refrain from consuming alcohol, his destruction of government property, failure to comply with verbal and written orders and being incapacitated while on watch/duty demonstrate he was unsuitable for further service. His service record is marred by the award of non-judicial punishment (NJP) on three separate occasions and numerous page eleven counseling entries, which substantiate his misconduct . It must be noted that most Marines serve honorably and well; 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. An upgrade to honorable conditions would be inappropriate. Relief denied.

Issue 4: T here 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. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any 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. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. Relief denied.
 
The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. 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 134 incapacitated while on duty, Article 92, disobedience of a lawful order, Article 108, destruction of government property.
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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