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USMC | DRB | 2003_Marine | MD03-00570
Original file (MD03-00570.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD03-00570

Applicant’s Request
The application for discharge review was received on 20030212. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to RE Code 1. The Applicant requests a documentary record discharge review. The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040312. 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 and narrative reason 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 stated

 Applicant’s issues, as stated on the application:

“1. I was never convicted of DUI, dismissal by District Attorney.

2. Two current statements about current condition to show that I have overcome this condition.

3. Statement by Dr. M_, USMC my problem was alcohol abuse and not dependency.

4. Letter to show that I was not convicted of DUI.

5. On 6-5-01 was recommended for re-enlistment after I was dropped for Rehab Failure.”

 Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION." None were found.
Additional issues submitted by Applicant’s counsel/representative (American Legion):

“6. (Equity Issue) This former member finally 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 the application. ”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Character reference from Applicant’s in-laws, dated January 25, 2003
Character reference from Applicant’s wife, dated December 12, 2002
Medical page, dated June 30, 2000
DMV report, dated June 19, 2000
Career planning contact record, dated June 5, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR(J)                971220 - 980428  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 980429               Date of Discharge: 010720

 Length of Service (years, months, days):

         Active: 03 02 22
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 53

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (6)                       Conduct: 4.2 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: Letter of Appreciation (3), MM

 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 :

990914:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification: Absence without leave on 0630, to wit: formation at the shop.
Specification 2: Absent without leave on 0730, to wit: Squadron formation.
Awarded restriction and extra duties for 30 days, reduction to PFC. Reduction suspended for 60 days. Not appealed.
000623:  Counseled for deficiencies in performance and conduct. [Alcohol related incident on 000619 which resulted in a citation of DWI (BAC .12) combined with an automobile accident.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000627:  Alcohol evaluation by Substance Abuse Counselor: Applicant found to be alcohol dependent.
010321:  Applicant terminated from intensive Outpatient Treatment as a treatment failure.

 010406:  Counseled for deficiencies in performance and conduct. [Treatment failure.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010501:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of alcohol rehabilitation failure.
010501:  Commanding Officer recommended discharge under honorable conditions (general) by reason of alcohol rehabilitation failure. The factual basis for this recommendation was your failure to comply with a prescribed alcohol treatment program as evidenced by your being deemed an alcohol treatment failure by Substance Abuse Counseling Center.

010522:  Applicant advised of 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.

010702:  SJA review determined the case sufficient in law and fact.

010702:  GCMCA [Commanding General, 2d Marine Aircraft Wing, Cherry Point, NC] directed the Applicant's discharge general (under honorable conditions) by reason of alcohol rehabilitation failure (dependent).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010720 under honorable conditions (general) due to alcohol 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).

Issues 1, 2, 4. The Applicant was found to be an alcohol rehabilitation treatment failure by a properly credentialed health care provider on 20010321. A DUI charge, conviction, or dismissal does not change the fact that the Applicant failed rehabilitation on 20010321. The Applicant’s claim that he has overcome his alcohol condition does not invalidate his prior alcohol rehabilitation treatment failure. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion 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 to honorable is inappropriate. Relief denied.

 The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

Issues 3 and 5. The Medical Officer’s evaluation of 20000630 and his career planner’s recommendation for reenlistment does not invalidate nor mitigate the Applicant’s subsequent alcohol rehabilitation treatment failure. Relief denied.

Issue 6. 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 . 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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