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


FOR OFFICIAL USE ONLY


ex-Pvt, USMC
Docket No. MD05-00925

Applicant’s Request

The application for discharge review was received on 20050428. 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 designated a private representative on the DD Form 293. Subsequent to the application, the Applicant informed the Board that she had no representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051020. 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 General (Under Honorable Conditions) by reason of alcohol rehabilitation failure.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or from an attached document/letter to the Board:

“To the Board:

My name is R_ T_ (Applicant) and I’m submitting my application for my discharge to be up graded. When I was transferred to my unit every thing was fine until my roommate tried to get me charged with sleeping with a married marine in our unit. This lasted all most a year. I told them it was my boyfriend in the room he even submitted his statement and the other marine submitted his statement and statements from the people he was with to prove that my roommate was not telling the truth. During this whole time I wasn’t aloud to go on any special operations only to the field and my company volunteered me for those for long periods of time. When they finally dropped the case because they said my witness came forward but my witness was there from the beginning. They wanted me to plead guilty to some thing I didn’t do. So when the charges were dropped it was past the time I was supposed to be promoted and my company didn’t want to promote me because the case was dropped. I didn’t have any nonerecks I then went to speak to my company’s first sergeant about being promoted and he wasn’t happy about how the charges were dropped against me and said you’re not getting promoted because you’re pending NJP and this was a week later. I asked for what he told me for drinking under age at mess night. I told first sergeant that I had received a page 11 for that. He yelled at me threw things off his desk and told me no I didn’t and I was going to get an NJP. That’s when I called my dad who at the time was in the marines to help me out. When first sergeant spoke to my dad he told my dad I was not going to get an NJP. So my dad also asked about my promotion and he said he was going to look into it. Every week after that I had problems with my company my dad was the only person I could turn to for help. I was picked on for calling my dad. My first sergeant said I jumped the chain of command. I asked first sergeant how is that possible if he’s my dad, he is the only one trying to help me right now my company isn’t. One night I was in my room drinking and my mom thought some thing was wrong with me so she called duty to go and check on me. Duty came to my room to see if every thing was ok I told them I was fine and they wanted me to go sit in the duty hut until the duty from main side came. I told him I was fine and the MPs were there I said,” I do not need medical attention.” As soon as I was down stairs six MPs surrounded me. I asked what is going on and they said they are here to make sure you are ok. I told them I was fine you guys do not need to surround me. I tried to get threw one of them but he wouldn’t move I started to have a panic attack and couldn’t breath because I didn’t know what was going on. I started yelling at them to get out of my way and they pulled out pepper spray. So I ran from them and they all jumped me. I tried to get them off of me I was kicking and screaming and they pined me to the ground. There were a lot of people out side watching what was going on and they were telling them to get off of me. I finally got free and pasted out because I couldn’t breath and ended up getting five staples in my head. So that next day my company was charging me with disrespect, assault, disobeying a lawful order. I had four witnesses again to tell what happened they sent one of the Cpl to the field so he couldn’t be at my NJP and another marine couldn’t because they told him he was going to be charged with being out of his room while he was on restriction. The colonel said well T_ (Applicant) you’re not going to be so lucky this time he didn’t want to hear what my witness had to say his mind was already made up because I didn’t get charged with that court marshal. He put me on restriction for thirty days. The colonel told me if he saw me again he was going to kick me out with a bad conduct. That was the first time I had ever received an NJP. Then he told me I should have been charged and found guilty for that court marshal. Then he told me I don’t see how this witness came come forward all of a sudden and I told him my witness was there form day one he then told me to close my mouth he didn’t want to hear it. They made me go to alcohol classes because of the incident. My councilor there had me do home work, he gave me papers to fill out and I asked him be for I left if the question doesn’t pertain to me what do I put. He told me to put n/a so I did and he called my company and said I didn’t do my home work and it was three question I had n/a for. So my company didn’t say any thing to me about it. Until it was almost time for me to get off of restriction and a CPL and sergeant came to my room and they had beer and alcohol. They left there beer in my room and I didn’t know about it and my room was inspected and they found the alcohol, I told them it wasn’t mine I wasn’t drinking it’s not mine. I tried to get the CPL and sergeant to speak up so I wouldn’t get another NJP they didn’t want to they didn’t want to get in trouble every one else knew the truth but they didn’t care my company once again gave me a NJP for an open container. They gave me 45-45 and lose of rank and took my money. And this was the part that every one loved the colonel said I’m kicking you out to. Even though this was my second NJP. They kicked me out for alcohol rehabilitation failure. They only sent me to a few classes and I had a breathalyzer test every morning I went and I passed every time. If I really had a problem with alcohol they would have tried some other type of treatment. I only drank once in a while. Every one was trying to help me with the problems I was going threw with my company. Marines was calling to the head of the Marines Corps, I filled two EEO complaints. I’ve tried to get out of my company several times but they wouldn’t let me go. I had orders to Japan but they pulled those. They only let me go on leave one time. I wanted to stay in but just go to a different company my colonel told me no the only way I was leaving was packing my bags for good and that is the clean version of how he said it. I feel I do deserve an honorable discharge. I was a good Marine and I still am I’ve had recommendations sent in so they will reconsider putting me out the marines but the Colonel said your gone. I’ve done every thing I could possible think of to be a good marine. With the rating they gave me I couldn’t even reenlist. So please reconsider my discharge.

R_ T_ (Applicant) (social security number deleted) ”

Representative submitted no issues.



Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
Letter from the Applicant, undtd
Character Reference ltr from S_ H_, CMA, CPC, CMRB, Instructor of Allied Health Department, dtd January 25, 2005
Character Reference ltr from J_ H_ R.N., C.M.A., Director of Allied Health Department, dtd January 21, 2005

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USMCR (DEP)    20000324 - 20000416      COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 20000417             Date of Discharge: 20020308

Length of Service (years, months, days):

Active: 01 10 22
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 19

Years Contracted: 4

Education Level: 12                                 AFQT: 32

Highest Rank: PFC                                   MOS: 3533

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: 4.1 (4)                                Conduct: 4.3 (4)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Letter of Appreciation, Rifle Marksman Badge.

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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 :

000317:  Report of Medical History: Applicant denied history of alcohol abuse.

010703:  Counseling: Advised of deficiencies in performance and conduct (Under age drinking SNM during the Company Mess Night on June 28, 2001 was consuming alcohol under age.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010712:  CSACC Consultation Report: Applicant referred by Command for passing out at Command Mess Night June 2001. Applicant admitted first involvement with alcohol at age 15; history of getting violent when intoxicated; drinking and driving 5 times; and reporting to work many times intoxicated.
Impression: Alcohol dependence and Adult child of an alcoholic.
Recommendation: Intensive Outpatient Program.

010723:  CSACC, Camp Pendleton, CA, Summary of Care: “[The Applicant] entered into the Intensive Outpatient program on 7/18/01 with a diagnosis of Alcohol Dependence. As the [Applicant’s] time in treatment drew to a close, she indicated that she had no motivation for involvement in any ongoing recovery program and planned to drink when legally of age. Due to lack of motivation and sincere effort as manifested by failure to comply with her treatment plan and multiple CSACC rule infractions the Applicant was exited as a treatment failure. [Applicant] was staffed on 7/23/01 for failure to complete and hand in 3 written assignments, negative attitude and behavior and being disruptive in group. [Applicant] continued her negative attitude and behavior after several warnings from staff.”
Exit Diagnoses: (1) Alcohol dependence. (2) Adult child of an alcoholic.
Disposition: Strongly recommended that she be expeditiously processed for administrative separation in accordance with MCO P1000.10.

011017:  Counseling: Advised of deficiencies in performance and conduct (SNM in the past eight months has put herself in situations where her Leadership, Integrity, Judgment, Responsibility and Dependability have been in question. On or about October 11, 2001, SNM self-inflicted burns to her left forearm to create a tattoo with the phrase (hate is pain death is forever). SNM is not recommended for promotion until she shows to the Platoon Sergeant and Platoon Commander significant improvement and understanding of the Leadership traits). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

011116*:         Battalion NJP for violation of UCMJ, Article 80: In that SNM did, on or about 2200, 24 November 2001, attempt to strike and assault several Marines, including Military Police, who were then in the process of trying to restrain her.
Violation of UCMJ, Article 117: In that SNM did, on or about 2200, 24 November 2001, wrongfully use gestures, to wit: swinging her fists and kicking her legs at several Marines who were then in the process of trying to restrain her.
Violation of UCMJ, Article 92: In that SNM, having knowledge of a lawful order issued by Sgt L_, R_ L., who was then in the execution of her duties as Duty NCO for Barracks 210905, to open her barracks room door, an order which it was her duty to obey, did, on or about 2200, 24 November 2001, fail to obey the same.
Violation of UCMJ, Article 128: In that SNM did, on or about 2245, 24 November 2001, assault LCpl H_, L_ M., who then was known by the accused to be a person than having and in the execution of military policy duties (Badge #8849), by kicking and swinging her fists and legs at him.
Violation of UCMJ, Article 128: In that SNM did, on or about 2200, 24 November 2001, assault Sgt L_ R_ L., who was then known by the accused to be a sentinel in the execution of her duty as Barracks 210905 Duty NCO, by swinging her fists at [her].
Violation of Article 128: In that SNM did, on or about 200[0], 24 November 2001, assault Cpl L_ J_ M., who was then known by the accused to be a sentinel in the execution of his duty as Barracks 210905 Assistant Duty NCO, by swinging her fists at him.
Violation of Article 134: In that SNM was, on or about 2200, 24 November 2001, drunk and disorderly, with a B.A.C. of 0.18 as confirmed by Form SF55B, Log Number 011124-0005, which conduct was of a nature to bring discredit upon the armed forces.
Violation of Article 134: In that SNM did, on or about 2245, 24 November 2001, wrongfully communicated to LCpl H_ L_ M. a threat “I will kill you all” While he was in the execution of military policy duties (Badge #8849).
         Award: Forfeiture of $521 per month for 1 month, restriction and extra duty for 30 days, reduction to E-1. Not appealed.
         [*Note: Entry shows NJP proceedings conducted on 20011116. It is believed that this is an administrative error since the incident, which precipitated the NJP occurred on 20011124. The Board concluded that the NJP was held after 20011124.]

020107:  Substance Abuse Control Officer, 1st Transportation Support Battalion, strongly recommended that the Applicant be expeditiously processed for administrative separation in accordance with MCO P1000.10.

020111:  Battalion NJP for violation of UCMJ, Article 92 (3 specs):
         Specification 1: In that SNM, having knowledge of a lawful order issued by 1st TSB Commanding Officer not to consume alcoholic beverages while on restriction, an order which it was her duty to obey, did, on or about 07 December 2001, fail to obey the same.
         Specification 2: In that SNM, having knowledge of a lawful order which issued by 1st TSB Commanding Officer not to ride in personally owned vehicle, an order which it was her duty to obey, did, on or about 07 December 2001, fail to obey the same.
         Specification 3: In that SNM, having knowledge of a lawful order issued by 1st TSB Commanding Officer not to possess liquor in the Bachelor Enlisted Quarters, to wit: BnO 11000.2, an order which it was her duty to obey, did, on or about 0900, 04 January 2002, fail to obey the same by having two open liquor bottles in her room.
Violation of UCMJ, Article 112: In that SNM, was, on or about 0700, 04 January 2002, was found drunk while on duty as a motor transport vehicle operator, as shown on NAVMED 6120, with BAC of .084.
Violation of UCMJ, Article 91: In that SNM on or about 1350, 03 January 2002, was disrespectful in language toward Corporal G_, a Noncommissioned Officer, then known by SNM to be a Noncommissioned Officer, who was then in the execution of his office, by saying to him “Whatever, f_ _ _ you.” or words to that effect.
         Award: Forfeiture of $300 per month for 1 month, restriction and extra duty for 45 days. Not appealed.

020111:  Company Commander, Alpha Company recommended to Commanding Officer, 1st Transportation Support Battalion, that the Applicant be discharged under other than honorable characterization by reason of misconduct due to a pattern of misconduct and alcohol rehabilitation failure.

020131:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of alcohol rehabilitation failure. The factual basis for this recommendation was your documented failure of the alcohol rehabilitation program.

020201:  Applicant advised of rights and having consulted with counsel, elected to include a statement in rebuttal to this proposed separation and to obtain copies of the documents used to support the basis for the separation.

020205:  Applicant’s rebuttal for separation statement.

020211:  Commanding Officer, 1st Transportation Support Battalion, recommended to Commander, 1st Force Service Support Group, the Applicant’s discharge with a general (under honorable conditions) by reason of alcohol rehabilitation failure. Commanding Officer’s comments: “On 30 July 2001, Private T_ (Applicant) received an official page 11 counseling for underage drinking during Alpha Company mess night. Private T_ (Applicant) had passed out due to over indulgence of alcohol. Private T_ (Applicant)’s platoon sergeant called 911, and she was admitted to the Naval Hospital for treatment. Private T_ (Applicant) was released the next morning. Private T_ (Applicant) was also found guilty at Battalion Commander’s Officer Hours held on 30 November 2001 for violations of the UCMJ. Violation of Article 80, attempting to strike and assault Marines, including the Military Police, who were in the process of trying to restrain her. Violation of Article 117, wrongful use of gestures by swinging her fists and kicking her legs at the Marines that were in the process of restraining her. Violation of Article 92, failure to obey an order given by the barracks duty NCO to open her room door. Violation of Article 128, assaulted Lance Corporal H_ who was in the execution of his military police duties by kicking and swinging her fists. Violation of Article 128, assaulted Sergeant L_ who was in the execution of her duty as the barracks duty NCO by swinging her fists at her. Violation of Article 128, assaulted Corporal L_ who was in the execution of his duty as the barracks assistant duty NCO by swinging her fists at him. Violation of Article 134, wrongfully communicated to Lance Corporal H_ a threat, “I will kill you all.” Private T_ (Applicant) was awarded reduction to Private, forfeiture of $521.00 pay per month for 1 month (total forf $521.00), restriction and extra duty for 30 days. Private T_ (Applicant) was found guilty at a second Battalion Commander’s Office Hours held on 11 January 2001 for violation of the UCMJ. Violation of Article 92, failed to obey her restriction limitations by consuming alcohol while on restriction. Violation of Article 92, failed to obey her restriction limitations by riding a personally owned vehicle while on restriction. Violation of Article 92, failed to obey BnO 11000.2 by wrongfully possessing two open liquor bottles in her room. Violation Article 112, was found drunk on duty with a 0.84 BAC. Violation Article 91, was disrespectful towards Corporal G_ by saying “Whatever, f_ _ _ you.” Private T_ (Applicant) was awarded forfeiture of $300.00 pay per month for 1 month (total forf $300.00), restriction and extra duty for 45 days.
Private T_ (Applicant) was referred to SACO due to her underage drinking incident at company mess night. On 12 July 2001, she was diagnosed as being alcohol dependent. On 18 July 2001, she began Intensive Outpatient treatment. On 23 July 2001, Private T_ (Applicant) was removed from the program as a treatment failure due to her failure to complete three hand written assignments, a negative attitude, and being disruptive in the group. Private T_ (Applicant) has no potential for future service in the United States Marine Corps due to her alcohol abuse and failure to attend rehabilitation.”

020220:  SJA review determined the case sufficient in law and fact.

020304:  GCMCA, Commander, 1st Force Service Support Group, informed the Commandant of the Marine Corps (MMSB), that the Applicant was directed discharged with a general (under honorable conditions) by reason of alcohol rehabilitation failure.

Service Record did not contain offer of VA rehabilitative treatment.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020308 by reason of alcohol rehabilitation failure (A) with a service characterization of general (under honorable conditions). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant contends that her discharge was improper because she attempted to fulfill the requirements of the alcohol rehabilitation program. The Applicant claims that she completed her homework assignments except for three questions, which she answered “N/A” because those questions did not apply to her. In a Summary of Care statement by Consolidated Substance Abuse Counseling Center on 20010723, B.L. G_, Captain, MC, USN, stated: “[The Applicant] entered into the Intensive Outpatient program on 7/18/01 with a diagnosis of Alcohol Dependence. As the [Applicant’s] time in treatment drew to a close, she indicated that she had no motivation for involvement in any ongoing recovery program and planned to drink when legally of age. Due to lack of motivation and sincere effort as manifested by failure to comply with her treatment plan and multiple CSACC rule infractions the Applicant was exited as a treatment failure. [Applicant] was staffed on 7/23/01 for failure to complete and hand in 3 written assignments, negative attitude and behavior and being disruptive in group. [Applicant] continued her negative attitude and behavior after several warnings from staff.” This document shows that the Applicant was removed from treatment for much more than just failing to complete homework assignments. It is noted that the Applicant did not provide any credible and substantial evidence to support her claim. Therefore, the Board determined that there was no impropriety. Relief on this basis is denied.

The Applicant implies that her discharge was inequitable because she was a good Marine. She claims, “I’ve done everything I could possible think of to be a good Marine.” When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as Honorable. Characterization of service as General (Under Honorable Conditions) 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. There is irrefutable evidence that the Applicant’s conduct during her time in the Marine Corps was not honorable. Indeed, the Applicant’s records contain:
•         Retention warning entry on 20010703 for under age drinking;
•         Retention warning entry on 20011017 for questionable leadership, integrity, judgment, responsibility and dependability and self-inflicted burns to her left forearm to create a tattoo with the phrase ‘hate is pain death is forever;’
•         Battalion level nonjudicial punishment on 20011116 for violation of UCMJ Article 80 Attempts, Article 92 Failure to obey order, Article 117 Provoking gestures, Article 128 Assault (3 specifications), Article 134 Drunk and disorderly, and Article 134 Communicating a threat; and
•         Battalion level nonjudicial punishment on 20020111 for violation of UCMJ Article 92 Failure to obey order (3 specifications) and Article 112 Drunk on duty.
The Applicant’s conduct, which forms the primary basis for determining the character of her service, falls well below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate; therefore relief is denied.

The Applicant expresses a desire to reenlist. While t he Board recognizes her motivation to become a Marine again, the Applicant is advised that the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Since this issue does not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

While 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 Marine Corps, the Board 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. 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. The Applicant submitted two character references for consideration. The Applicant is advised that her efforts need to be more encompassing to include verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle. At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in her characterization of discharge. And so, no relief is granted on this basis.

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 her discharge at that time. 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 P1600.19F), effective 01 Sep 2001 until Present, Paragraph 6209, ALCOHOL REHABILITATION FAILURE.

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

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

D. 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 .

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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