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NAVY | DRB | 2004 Marine | MD04-00066
Original file (MD04-00066.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVY NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT____________________________________________________________
ex-PFC, USMCDocket No. MD04-00066
_______________________________________________________________________Applicant’s RequestThe application for discharge review was received on 20031008. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and his RE code be changed to “RE-3.” The Applicant requests a documentary record review. The Applicant did not list a representative on his DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) has no authority to change RE-codes._______________________________________________________________________DecisionA documentary discharge review was conducted in Washington, D.C. on 20040628. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

_______________________________________________________________________
 Issues, as stated Applicant’s issues, as stated on the application:“1. Request that RE entry code: RE-4 be changed to RE entry code: RE-3 so that I may reenlist to the Army National Guard. ” Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION." None were found._________________________________________________________________________ Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:None

PART II - SUMMARY OF SERVICE
_______________________________________________________________________
 Prior Service (component, dates of service, type of discharge):  Active: USMC              None                       HON      Inactive: USMCR (J)               920207 - 920913  COG Period of Service Under Review : Date of Enlistment: 920914             Date of Discharge: 960221 Length of Service (years, months, days):        Active: 03 05 08 (Does not include lost time.)   Inactive: None Age at Entry: 22                    Years Contracted: 4 Education Level: 12                    AFQT: 36 Highest Rank: LCpl Final Enlisted Performance Evaluation Averages (number of marks): Proficiency: 4.5 (8)                    Conduct: 4.3 (8) Military Decorations: None Unit/Campaign/Service Awards: NDSM, LtrA, MM, CertCom 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 :

 930217:  Counseled for deficiencies in performance and conduct. [Concerning an alcohol related incident which (applicant was) involved in on 29 Jan 93 which resulted in (Applicant’s) extreme intoxication (BAC .47) which led to hospitalization and near drowning.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940308:  Counseled for deficiencies in performance and conduct. [Lack of responsibility and attention to detail while preparing for the Commanding Generals inspection on 24 Feb 94.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940808:  Counseled for deficiencies in performance and conduct. [Frequent involvement of a discreditable nature with military/civilian authorities being convicted of a D.U.I. with a B.A.C. of.18.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

941208   Applicant found to be alcohol dependent Dependency confirmed by medical officer.

950703:  UA (AOL) since 0731.

950708:  From UA (AOL) at 1045 when (Applicant) surrendered.

950711:  Counseled for deficiencies in performance and conduct. [Violation of Art. 86, UCMJ, disregards for orders and regulations and involvement with civilian authorities in a discreditable nature by being IHCA for D.U. I.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950720:  NJP for violation of UCMJ, Article 86: Did on or about 3 Jul 95, without authority, absent himself from his work section and did remain so until 8 Jul 95.Awd forf of $478.00 per month for 2 months susp for 60 days. Not appealed.

950919:  Applicant notified of intended recommendation for discharge of “general (under honorable conditions)” by reason of (Applicant’s) relapse into chronic alcohol abuse subsequent to successful completion of Level III treatment, four page 11 counseling entries and one nonjudicial punishment.

950919:  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.

950920:  Commanding officer recommended discharge of “general (under honorable conditions)” by reason of alcohol rehabilitation failure. The factual basis for this recommendation was (Applicant’s) relapse into alcohol abuse after completing of rehabilitation and after care. Commanding officer’s comments: (Applicant’s) alcohol dependency fits the pattern of abuse typical of a chronic alcoholic. He admits his dependency and despite what I believe, to have been sincere intention to reform, his alcohol abuse continues. His record of alcohol based infraction, following care, clearly establishes that he is unsuitable for continued service in the Marine Corps.

951012   Commanding General’s return endorsement: (Applicant’s) record reflects a serious pattern of misconduct and lack of will and desire to conform to the high standards expected of Marines. Process (Applicant) in accordance with Paragraph 6210.3 of reference (a) for misconduct.

951103:  Commanding officer, in compliance with Commanding General’s return endorsement, recommended discharge with a characterization of “general, under honorable conditions” by reason of misconduct due to a pattern of misconduct. The factual basis for this recommendation was a “demonstrated pattern of misconduct that seems to be the result of chronic alcohol abuse. Commanding officer’s comments: (Applicant’s) frequent infractions and failed alcohol rehabilitation indicates his probable continuation of unsatisfactory behavior. His chronic alcohol abuse and repeated commission of DUI, reflects a serious pattern of misconduct, lack of will and effort to comport himself in accordance with regulations.

951206:  SJA review determined the case sufficient in law and fact.

951229:  GCMCA [Commanding General, Marine Corps Base, Camp Pendleton] directed the Applicant be separated “with a general discharge under honorable conditions” by reason of misconduct due to a pattern of misconduct.

960110:  Applicant requested VA medical treatment for alcohol dependency.

960122:  Applicant MEDAVAC to the VA Hospital Salt Lake City, UT for admission to the Alcohol Rehabilitation Ward for a period of about 30 days.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW
______________________________________________________________________
 Discussion

 The Applicant was discharged on 19960221 with a general discharge under 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).
Issue 1: Concerning a change in reenlistment code, 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. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.
The Applicant's discharge was proper and equitable. Normally service members released from service under circumstances similar to the Applicant receive an other than honorable discharge. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge. The Applicant's misconduct is clearly documented. He acknowledged and waived his rights to administrative review. He was notified that by waiving his rights and accepting a general discharge, he could possibly encounter significant difficulties in obtaining employment and other benefits. The Applicant was afforded the appropriate due process during the handling of his case. The Board noted the Applicant’s record was marred by four negative page 11 counseling entries and a nonjudicial punishment for being absent without authority. An upgrade of the Applicant's discharge to an honorable characterization is not warranted. Relief denied.

The applicant is reminded that he is eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at 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 18 Aug 95 until 30 Jan 97.

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.
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      

BOARD MEMBERS RECORD OF A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 950818 until 970130), Paragraph 6210, MISCONDUCT , states:1. Whenever a Marine is involved in misconduct, as described in the following paragraphs, commanders shall process the Marine for separation unless rehabilitation and retention are warranted under the guidelines in paragraphs 6105. Characterization of service normally shall be under other than honorable conditions, but characterization as under honorable conditions (general) may be warranted in some circumstances. For Marines who have completed entry-level status, characterization of service as honorable is not authorized unless the Marine's record is otherwise so meritorious that any other characterization clearly would be inappropriate and the separation is approved by the GCMCA. When characterization of service under other than honorable conditions is not warranted for a Marine in entry-level status, the separation shall be uncharacterized. Separation processing for a series of minor disciplinary infractions or a pattern of misconduct may not be initiated until the member has been counseled in accordance with the guidelines for counseling set out in paragraph 6105. Counseling per paragraph 6105 and rehabilitation are not required if the basis of separation is commission of a serious offense, a civilian conviction or similar juvenile adjudication, sexual harassment, or drug abuse. Process per provisions of paragraph 6303 or 6304 as appropriate. Actions on related misconduct separations:a. Misconduct involving homosexual conduct shall be processed under paragraph 6207.b. Misconduct involving fraudulent entry shall be processed under paragraph 6204.3.c. Offenses involving drug abuse shall be processed for separation by reason of the appropriate drug abuse offense in paragraph 6210.5, as well as, other applicable reason in this Manual.2. Minor Disciplinary Infractions . A Marine may be separated when there is in her/her service record book, a documented series of at least three minor disciplinary infractions, during the current enlistment, of a nature, which have been or would have been appropriately disciplined under Article 15, UCMJ, nonjudicial punishment. If separation of a member in entry-level status is warranted solely by reason of minor disciplinary infractions, the processing should be under Entry Level Performance and Conduct. Separation processing may not be initiated until the Marine has been counseled per paragraph 6105. The notification procedure contained in paragraph 6303 may be used if characterization of service under other than honorable conditions is not warranted.3. Pattern of Misconduct . A Marine may be separated when there is a pattern of more serious misconduct than in paragraph 6210.2, which include[s] two or more discreditable involvements with civil and/or military authorities or two or more instances of conduct prejudicial to good order and discipline within one enlistment. Such a pattern may include both minor and more serious infractions. An established pattern of dishonorable failure to pay just debts and/or to contribute adequate support to dependents or failure to comply with orders, decrees, or judgements of a civil court concerning support of dependents may be processed under this paragraph. Separation processing may not be initiated until the Marine has been counseled per paragraph 6105. The notification procedure contained in paragraph 6303 may be used if characterization of service under other than honorable conditions is not warranted. 4. Sexual Perversion . Sexual perversion (see paragraph 1002.53) is not a specific basis for discharge. Marines involved in acts of sexual perversion shall be processed under paragraph 6210.6 or 6210.7, as appropriate. 5. Drug Abuse a. Commanders shall process Marines for administrative separation for illegal, wrongful, or improper use, possession, sale, transfer, distribution, or introduction on a military installation of any controlled substance, marijuana, steroids, or other dangerous or illicit drug or the possession, sale, or transfer of drug paraphernalia as defined in SECNAVINST 5300.28. Evidence obtained from an involuntary urinalysis administered pursuant to an inspection under Military Rules of Evidence 313, MCM 1984, or from a search and seizure under Military Rules of Evidence 311317, MCM, 1984, or incident to an exam conducted for a valid medical reason may be used to characterize a member's discharge as under other than honorable conditions. The procedures contained in paragraph 6304 shall be used when separating a Marine under these provisions, unless a characterization of service more favorable than other than honorable is required.b. All Marines, regardless of pay grade, confirmed as having used or possessed illegal drugs will be processed for administrative separation for misconduct, by reason of drug abuse, per paragraph 6210.5 on the first offense. Marines may also be disciplined if such action is deemed appropriate.c. Self-referral for drug use constitutes confirmation of illegal drug abuse and requires a Marine to be processed for administrative separation. The Voluntary Drug Exemption Program is no longer applicable. However, a Marine's voluntary submission to a DoD treatment and rehabilitation program, and evidence voluntarily disclosed by the Marine as part of the course of treatment in such a program may not be used against the Marine on the issue of characterization of service. This limitation does not apply to:(1) The introduction of evidence for the purpose of impeachment or rebuttal in any proceeding in which evidence of drug abuse has been first introduced by the Marine; or(2) The taking of action based on independently derived evidence, including evidence of continued drug abuse after initial entry into a treatment and rehabilitation program.d. Marines separated for drug abuse will be screened for drug dependency at a Substance Abuse Counseling Center (SACC) and, if diagnosed as drug or alcohol dependent, will be referred to the Veterans Administration at the time of separation. . . . Commission of a Serious Offense . a. A Marine may be processed for separation for the commission of a serious military or civilian offense under the following circumstances:(1) The specific circumstances of the offense warrant separation.(2) A punitive discharge would be authorized for the same or a closely related offense under the UCMJ.b. A military or civilian conviction is not required for discharge under this provision.c. Follow the procedures in paragraph 6304 when separating a Marine under this provision. Civilian Conviction . a. Commanders may process Marines who are convicted by civilian authorities (foreign or domestic) or action taken which is tantamount to a finding of guilty, including similar adjudications in juvenile proceedings, when:(1) The specific circumstances of the offense warrant separation, and(2) A punitive discharge would be authorized for the same or a closely related offense under the UCMJ; or(3) The sentence by civilian authorities includes confinement for 6 months or more without regard to suspension or probation.b. Separation processing may be initiated whether or not a Marine has filed an appeal of a civilian conviction or has stated an intention to do so. However, execution of an approved separation should be withheld pending outcome of the appeal or until the time for appeal has passed, unless the Marine has requested separation or the member's separation has been requested by the Commandant of the Marine Corps. Such request must be approved by the Secretary of the Navy who may direct that the member be separated prior to final action on the appeal.c. For special provisions regarding characterization of discharge based upon civilian conviction in the case of a reservist, see paragraph 1004.4d.d. Follow the procedures in paragraph 6304 when separating a Marine under this provision.8. Sexual Harassment a. Processing for separation is mandatory following the first substantiated incident of sexual harassment involving any of the following circumstances:Threats or attempts to influence another’s career or job for sexual favors:Rewards in exchange for sexual favors; or,(3) Physical contact of a sexual nature which, if charges as a violation of the UCMJ, could result in a punitive discharge.b. An incident is considered substantiated when there has been a court-martial conviction, nonjudicial punishment, or the commander determines, based on a preponderance of the evidence, that sexual harassment has occurred.c. Refer to the procedures in paragraph 6303 or 6304, as applicable. The basis for separation shall be under paragraph 6210.2 (Minor Disciplinary Infractions); 6210.3 (Patter of Misconduct); or 6210.6 (Commission of a Serious Offense). Counseling per paragraph 6105 is not required for processing a Marine for separation under this paragraph, unless the Marine is processed under paragraph 6210.2 or 6210.3.B. The Manual for Courts-Martial authorizes the award of a punitive discharge upon conviction by a special or general court-martial of violation of the UCMJ, Article [e.g. Article 86, for unauthorized absence for more than 30 days]. [OPTIONAL ADD ON] X. Paragraph 1004.3c of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 950818), Types of characterization, states, with regard to an under other than honorable conditions characterization:1. This characterization may be issued when the reason for separation is based upon behavior or omission that constitutes a significant departure from the conduct expected of a Marine. (Examples of factors that may be considered include, but are not limited to, the use of force or violence to produce serious bodily injury or death, abuse of special positions of trust, disregard of customary superior-subordinate relationships, acts or omissions that seriously endanger the health and safety of others, and drug abuse.)2. This characterization is authorized only if the member has been afforded the opportunity to request an administrative board, except in cases of separation in lieu of trial by courts-martial. See paragraphs 4104 and 6419.3. When an enlisted Marine serving in pay grade E-4 or above is administratively separated with an other than honorable characterization of service, the Marine shall be administratively reduced to pay grade E-3, such reduction to become effective upon separation.X. Paragraph 1004.4e of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 950818), Limitations on Characterization , Drug Abuse , states that confirmed illegal drug abuse requires mandatory administrative separation processing. If processing is based solely upon evidence that may not be considered in determining characterization of service, the separation authority may direct retention, or approve an honorable or general (under honorable conditions) characterization of service as warranted by the respondent's service record. In all other administrative separation proceedings based on drug abuse, the GCMCA may act as the separation authority and take final action in accordance with paragraph 6309 (except in cases that must be forwarded to the SECNAV or CMC under subparagraph 10004.4c or paragraph 6307.X. Paragraph 1004.4f of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 950818), states that the results of a mandatory urinalysis may be considered on the issue of characterization when the evidence was gathered during an inspection under Military Rules of evidence 313, MCM, or from a search and seizure under Military Rules of Evidence 311-317, MCM, or incident to an examination conducted for valid medical purpose under Military Rules of Evidence 312 (F), MCM.X. Table 1-1, Characterization of Service, Rule 8, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 950818), states that if a Marine is being separated under a provision of chapter 6, characterization of service is as directed by the separation authority.

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