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NAVY | DRB | 2004 Marine | MD04-00330
Original file (MD04-00330.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-00330

Applicant’s Request
The application for discharge review was received on 20031210. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record 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 20041001. 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 HONORABLE CONDITIONS (GENERAL)/Alcohol Abuse Rehabilitation Failure (administrative discharge board not required), authority: MARCORSEPMAN Par. 6209.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1. Please consider changing discharge and recode, want to go in reserves. Please consider good time, excellent marks I got on active duty. I realize I made a mistake, and would like to get it corrected.”

 Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION." None were found from the Applicant.

Additional issues submitted by Applicant’s representative (American Legion):

 2. “Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
________________________________________________________________________
In accordance with 32 C.F.R., section 724.166 and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition.

Please inform this Applicant that reenlistment codes are not within the Board’s purview.

Our review of the service record reveals that this former member maintained satisfactory overall PRO/CON markings of 4.5/4.5 and earned the NDSM, PSB and REB. On 940526, he was diagnosed as an alcohol abuser and referred to Level II. He refused treatment. On 940629, he was awarded NJP for VUCMJ, Arts. 92 (2 specs), 112, 134 (3 specs). Following due process notifications, he was discharged Under Honorable Conditions (General) due to alcohol rehabilitation failure as authorized by MARCORSEPMAN, Par. 6209.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because it is too harsh in light of his overall service record and because he would like to reenlist in the reserves. He has not submitted any additional documentation for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                910126 - 920121  COG

 Period of Service Under Review :
Date of Enlistment: 920122               Date of Discharge: 940818

 Length of Service (years, months, days):

         Active: 02 06 27
         Inactive: None

 Age at Entry: 19                          Years Contracted: 6

 Education Level: 12                        AFQT: 53

 Highest Rank: LCpl                         MOS : 6055

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (9)                       Conduct: 4.0 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, PSB, REB

 Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Alcohol Abuse Rehabilitation Failure (administrative discharge board not required), authority: MARCORSEPMAN Par. 6209.

 Chronological Listing of Significant Service Events :

940217:  Counseled for deficiencies in performance and conduct. [Over due housing lot rent and utilities bill.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940308:  Applicant informed eligible but not recommended for promotion to Cpl for the April 1994 promotion because of ongoing financial problems.

940526:  Applicant diagnosed as an alcohol abuser and recommended Level II/Outpatient treatment program.

940607:  Counseled for deficiencies in performance and conduct. [Failure to obey Housing regulations. Drinking while on duty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940614:  Applicant informed eligible but not recommended for promotion to Cpl for the July 1994 promotion because of pending NJP.

 940629:  NJP for violation of UCMJ, Article 134 (4 specs):
 Specification: Failed to pay $209.35 for mobile home lot rent on 940415.
Specification 2: Failed to pay $150.48 for home layaway account on 940425.
Specification 3: Failed to pay $189.90 for home layaway account on 940524.
Specification 4: Write a worthless check in the amount of $253.24 on 940329.
Violation of UCMJ, Article 92 (4 specs):
Specification 1: Refusal to attend Level II Alcohol Treatment on 940617.
Specification 2-4: Fail to obey housing regulations after receiving citations on 940301, 940330 and 940405.
Violation of UCMJ, Article 112:
Specification: Drunk on duty on 940428.
Awarded forfeiture of $466.00 per month for 2 months, extra duties for 45 days, reduction to E-2. Forfeiture for 2 months suspended for 3 months. Not appealed.
940701:  Applicant informed eligible but not recommended for promotion to Cpl for the July 1994 promotion because of pending NJP for 4 violations of the UCMJ.

 940711:  Applicant refused Level II alcohol treatment.

 940711:  Counseled for deficiencies in performance and conduct. [Refusal to attend Level II treatment for alcohol abuse.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
940727:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of alcohol rehabilitation failure.
940727:  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 and to submit a statement.

940727:  Applicant’s statement.

940728:  Commanding Officer recommended discharge under honorable conditions (general) by reason of alcohol rehabilitation failure. The factual basis for this recommendation was your refusal to participate in Level II treatment.

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

940810:  GCMCA [Commanding General, 2d Marine Aircraft Wing] directed the Applicant's discharge under honorable conditions (general) by reason alcohol rehabilitation failure.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940818 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).

Issue 1. A characterization of service 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, adverse counseling entries on other occasions, and his refusal to participate in an alcohol rehabilitation program. 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.

Issue 2. The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety occurred 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. 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge. 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 P1900.16D, effective 890627 until 950817), 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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