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USMC | DRB | 2005_Marine | MD0500884
Original file (MD0500884.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD05-00884

Applicant’s Request
The application for discharge review was received on 20050425. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests 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 20051102. After a thorough review of the available 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 by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Discharge requested for reenlistment purposes, wanting to go full active duty and are unable to with a RE code of 4 needs to at least be upgraded to a 3 for any type of reenlistment. I want more than anything to reenlist in the Marine Corp.”

 Applicant’s Remarks: (From DD Form 293.)

“I was discharged from the Marine Corps for continued underage drinking. I have since had two children, learned from my mistakes and have stopped drinking altogether. I would love a second chance at what I threw away. To make up for my mistakes, be an honorable Marine and serve my Country and make a life for my family I could not otherwise provide them. I believe I would excel in the Corp if given this opportunity. I want to go back in full Active Duty immediately if there would be an Upgrade in my discharge so I could reenlist. I appreciate you taking the time to review my request. I feel as though I threw my opportunity away back when I had a chance to prove myself. I am now asking you to grant me this second chance and let me now prove myself as a Marine and as I should have done then. Thanks, [signed] (Applicant)”

 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Memorandum from Staff Judge Advocate to Commander, 3d Force Service Support Group, dtd May 15, 2001
Reference ltr from C_ C. H_, MSgt, USAF, Retired, dtd March 25, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19990930 - 19991024      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19991025             Date of Discharge: 20010530

 Length of Service (years, months, days):

 Active: 01 07 06
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 19

 Years Contracted: 4

 Education Level: 9 (GED)                  AFQT: 45

 Highest Rank: PFC                                   MOS: 1345

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NA*                                    Conduct: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Sharpshooter Badge, Sea Service Deployment Ribbon

*Not Available


 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 :

990930:  Pre-service waiver for minimum education requirements.

000410:  NJP for violation of UCMJ, Article 92: Failed to obey a lawful order by consuming alcohol while underage at EEIC MARCORDET, FLW, MO.
         Award: Forfeiture of $502 per month for 2 months, restriction for 60 days. Restriction for 60 days suspended for 6 months. Not appealed.

000410:  Counseling: Advised of deficiencies in performance and conduct (misconduct for underage drinking), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000816:  Restriction awarded at NJP on 000410 vacated and ordered executed.

000816:  NJP for violation of UCMJ, Article 92: PFC K_ (Applicant), did on or about 2300, 000812 at Camp Hansen, willfully disobey a lawful order or regulation, to wit: MCBJO 1600.1B, by consuming alcohol while under the legal age to do so.
         Award: Forfeiture of $263 per month for 1 month, restriction and extra duty for 14 days. Forfeiture of $263, restriction and extra duty for 14 days suspended for 6 months. Not appealed.

000817:  Counseling: Advised of deficiencies in performance and conduct (Alcohol-related incident on 12 Aug 00; specifically, underage drinking which contributed to Applicant receiving an MOR at the Camp Hansen gate.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000829:  Applicant’s government license revoked for the alcohol related incident on 000812.

001003:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of Nov because of NJP on 000816.

001114:  Initial screening by Rehabilitation Department.
          AXIS I: Diagnosis or condition deferred on Axis I.
 AXIS II: Diagnosis deferred on Axis II.
AXIS III: None noted (patient report).
          Plan:
a. SNM have medical record on scheduled case manager appointment.
          b. SNM should maintain weekly meetings with command SACO.
         c. SNM should attend two Alcoholic Anonymous meetings per week.
         d. SNM is scheduled for a case manager appointment at ARD, Camp Lester to initiate treatment as needed on 07 Dec 00 @ 0900.
001127:  NJP for violation of UCMJ, Article 92: PFC K_ (Applicant), did on or about 0140, on 001105, at Camp Hansen, Okinawa, Japan, violate a lawful order to wit: MCB III MEF policy memorandum 1-98, by consuming alcoholic beverages while under the legal age to do so.
         Award: Forfeiture of $563 per month for 2 months, restriction and extra duty for 45 days. Forfeiture of $300.00 pay per month for 2 months and restriction and extra duty for 20 days suspended for 6 months. Not appealed.

001127:  Counseling: Advised of deficiencies in performance and conduct (Alcohol-related incident; specifically underage drinking, which led to NJP on 001127.), necessary corrective actions explained, sources of assistance provided. Applicant choose not to make a statement.

001128:  Counseling: Advised of deficiencies in performance and conduct (Alcohol-related incident, specifically underage drinking, consuming alcoholic beverages wile in a restricted status, which led to NJP on 001128.), necessary corrective actions explained, sources of assistance provided. Applicant choose not to make a statement.

001129:  Medical evaluation by Alcohol Rehabilitation Department for substance abuse assessment.
 AXIS I: Diagnosis or condition deferred on Axis I.
AXIS II: Diagnosis deferred on Axis II.
AXIS III: None noted (patient report).
          Plan:
 a. Abstain from all alcoholic beverages.
          b. Attend at least 2 or more AA meetings per week and maintain the provided AA meeting log.
         c. Abstain from all places where alcohol is the primary beverage of choice.
         d. Maintain weekly contacts with SACO and inform him of treatment status.
 e. The patient has a follow up appointment with this case manager on 02 Jan 01 at 0800.
001229:  Alcohol Rehabilitation Department.
          AXIS I: Alcohol dependence with physiological dependence.
         Plan:
a. Abstain from all alcoholic beverages.
          b. Attend at least 3 or more AA meetings per week and maintain the provided AA meeting log.
         c. Abstain from all places where alcohol is the primary beverage of choice.
         d. Maintain weekly contacts with SACO and inform him of treatment status.
         e. The patient has a follow up appointment with this case manager on 17 Jan 00 at 1300.
         f. Complete the following assignments - What does abuse addiction mean to me? - Consequences if I continue. - Identifying relapse triggers and cues.
010117:  Follow-up by Alcohol Rehabilitation Department.
          AXIS I: Alcohol dependence with physiological dependence.
         Plan:
 a. Abstain from all alcoholic beverages.
          b. Attend AA meetings at least 3 times or more per week and maintain the provided AA meeting log.
         c. Abstain from all places where alcohol is the primary beverage of choice.
 d. Maintain weekly contacts with SACO and inform him of treatment status.
e. The patient has a follow-up appointment with this case manager on 22 Feb 01 at 0830.
          f. Continue Early Warning Signs of relapse to be turned in on next appointment.

 010128:  NJP for violation of UCMJ, Article 92 (2 specs):
         Specification 1: PFC K_ (Applicant) did on or about 0005, on 001226, at Barracks 2441, 2 nd deck, willfully disobey a lawful general order, to wit: MCB III MEF policy memorandum 1-98, by wrongfully consuming alcoholic beverages while under the age of 21 years.
         Specification 2: PFC K_ (Applicant), did on or about 0005, on 001226, Barracks 2441, willfully disobey a lawful general order, to wit: Battalion restriction order, by consuming alcoholic beverages while in a restricted status.
 Violation of UCMJ, Article 134: PFC K_ (Applicant), did on or about 0005, on 001226, at barracks 2441, unlawfully enter the room of Cpl D_.
          Award: Forfeiture of $521 per month for 2 months, restriction for 60 days, reduction to E-1. Forfeiture suspended for 6 months. Not appealed.

010128:  Counseling: Advised of deficiencies in performance and conduct (Alcohol-related incident, specifically underage drinking, consuming alcoholic beverages while in a restricted status, which led to NJP on 010128.), necessary corrective actions explained, sources of assistance provided.

010207:  Applicant completed Intensive Outpatient Treatment at SACC, Camp Foster, Okinawa, Japan. [Extracted from Alcohol Rehabilitation Entry dated 010503.]

010305:  Follow-up by Alcohol Rehabilitation Department.
          AXIS I: Alcohol dependence with physiological dependence.
         Plan:
a. Abstain from all alcoholic beverages.
          b. Abstain from all places where alcohol is the primary beverage of choice.
         c. Maintain weekly contacts with SACO and inform him of treatment status.
         d. Attend AA meetings at least 5 times or more per week and maintain the provided AA meeting log.
         e. Attend next follow-up appointment with this case manager on 03 April 2001 at 1300.
         f. Attend FSC appointment on 7 March 2001 at 0900.
 g. Continue to keep a journal to vent emotions.
010306:  NJP for violation of UCMJ, Article 92 (2 specs):
         Specification 1: Pvt K_ (Applicant), did on or about 0200, on 010304, at Bks 2441, on 2 nd deck, willfully disobey a lawful general order, to wit: MCB III MEF Policy Memorandum 1-98, by wrongfully consuming alcohol while under the legal drinking age of 21.
         Specification 2: Pvt K_ (Applicant), did on or about 0200, on 010304, at Bks 2441, on 2 nd deck, willfully disobey a lawful general order, to wit: Battalion Restriction Order, by wrongfully consuming alcohol while in a restricted status.
 Violation of UCMJ, Article 134: Pvt K_ (Applicant), did on or about 0200, on 010304, at Bks 2441, on 2 nd deck, Camp Hansen, Okinawa, Japan, while drunk and disorderly, trash his room and attempt to jump out of the 2 nd deck window from the lounge.
Violation of UCMJ, Article 128: Pvt K_ (Applicant), did on or about 0200, n 010304, at Bks 2441, on 2 nd deck, Camp Hansen, Okinawa, Japan, assault PFC H_ by pushing and shoving him with his hands.
         Award: Forfeiture of $521 per month for 2 months, restriction and extra duty for 45 days. Not appealed.

010306:  Counseling: Advised of deficiencies in performance and conduct (Alcohol-related incident, specifically underage drinking, consuming alcoholic beverages while in a restricted status, drunk and disorderly, also assaulting another Marine, which led to NJP on 010306 and separation proceedings.), necessary corrective actions explained and sources of assistance provided.

010403:  Follow-up by Alcohol Rehabilitation Department.
          AXIS I: Alcohol dependence with physiological dependence.
         Plan:
a. Abstain from all alcoholic beverages.
          b. Abstain from all places where alcohol is the primary beverage of choice.
         c. Maintain weekly contacts with SACO and inform him of treatment status.
         d. Attend AA meetings at least 5 times or more per week and maintain the provided AA meeting log.
         e. Attend next follow-up appointment with this case manager on 03 May 2001 at 1300.
         f. Continue to keep a journal to vent emotions.
010503:  Follow up by Alcohol Rehabilitation Department.
          AXIS I: Alcohol dependence with physiological dependence.
         Plan: Patient is waiting to be discharged from active duty service at the end of the month. No further follow-up is planned at this clinic.
010515:  SJA review determined the case sufficient in law and fact. [Extracted from supporting documents provided by Applicant.]

010530:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, authority: MARCORSEPMAN Par. 6210.3.

Service Record Book contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010530 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions. 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). The Board presumed regularity in the conduct of governmental affairs (E).

 When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. An under other than honorable conditions discharge 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. The Applicant’s service was marred by five nonjudicial punishment proceedings for violations of Articles 92, 128 and 134 of the UCMJ. On 2000816, the Applicant’s punishment suspended at NJP on 2000410 was vacated due to the Applicant’s continued misconduct. The Applicant received two retention warnings and four counselings. The Applicant’s government vehicle operator’s license was revoked on 2000829 due to an alcohol incident. The Applicant’s violations of Articles 92 and 128 are serious offenses. The Applicant’s conduct is considered a violation of the special consideration given the Applicant upon enlistment, evidenced by the educational-wavier required for his entry. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that he was discharged from the Marine Corps for “continued underage drinking” and that he has now quit drinking. The Applicant was discharged from the Marine Corps by reason of misconduct due to a pattern of misconduct. The Applicant stood nonjudicial punishment proceedings five times due to his misconduct. The Applicant completed intensive outpatient treatment for alcohol dependence on 20010207 and subsequently stood nonjudicial punishment on 20010306 for violations of Articles 92, 128 and 134 of the UCMJ. While the Applicant may feel that he was discharged for “underage drinking,” the record shows the Applicant’s pattern of misconduct was the reason the Applicant was discharged. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Relief denied.

The Applicant contends that, since his discharge, he has abstained from alcohol, had two children and learned from his mistakes. 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 naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. Relief denied.

Regarding the Applicant’s request for a change of his RE-code. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. 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 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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 31 Aug 01.

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 92, failure to obey a lawful order/regulation or Article 128, assault.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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 “ http://Boards.law.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:

                  Secretary of the Navy    Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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