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USMC | DRB | 2005_Marine | MD0500956
Original file (MD0500956.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. MD05-00956

Applicant’s Request
The application for discharge review was received on 20050511. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. Applicant did not respond.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20050831. 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 and reason for 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:

“I am seeking the upgrade so I can either use the money I put into the GI (Montgomery) Bill. I was dismissed from a voluntary drug treatment program for a decision I made in my personal relationship. Which had nothing to do with my compliance to the treatment (This has been proven to be a improper point of focus in more Recent AODA treatments developed.) in the program. This caused my disregard for the tools that I’d learned in treatment. Causing me to continue to drink and behave poorly. Thinking, “I must not really have a problem if they kicked me out of the treatment center for that!” I was, consequently, years in the addiction cycle. Getting worse every year. Which was what led to my abuse of another’s prescription pain meds, That caused my discharge; and due to the loss of the GI Bill money, unable to be a proper provider for my family. After I’d paid off the G.I. Bill in full from my wages earned during my enlistment. If I’d been able to, allowed to, I’d have done my entire 6 yr hitch. But I was denied treatment, denied support and guidance when I clearly needed it, and, finally, denied the chance to finish my tour or even use the portion of the G.I. Bill money I had earned as wages.”

 Applicant’s Remarks: (Taken from the DD Form 293.)

“I’m not asking for anything more than an upgrade to general under honorable. I never lied or tried to hide my addiction and I even sought treatment. It is an illness, not caprice. I ask that it be judged on that basis. If not, I’d like to, at least, be refunded those portions of my wages that I put aside for payment into the Montgomery G.I. Bill.”


 Documentation
Only the service record book and medical records were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19860903 - 19870826               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19870827             Date of Discharge: 19900511

 Length of Service (years, months, days):

 Active: 02 08 15
          Inactive: None

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

 Age at Entry: 18

 Years Contracted: 6

 Education Level: 12                                 AFQT: 61

 Highest Rank: LCpl                                  MOS: 7051

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (8)                                Conduct: 4.1 (8)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214) : Sea Service Deployment Ribbon, Letter of Appreciation (3d award)


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.
Chronological Listing of Significant Service Events :

860830:  Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.
880119:  Counseling: Advised of deficiencies in performance and conduct (In military and academic performance. Lackadaisical attitude towards schooling e.g. sleeping in class and incomplete homework.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

880127:  NJP for violation of UCMJ, Article 92:
         Specification: Did, on or about 14Jan88, fail to obey a lawful verbal order given by SSgt P. B_ to complete homework assignments.
         Award: Forfeiture of $100 per month for 2 months, restriction and extra duty for 15 days. Not appealed.

880127:  Counseling: Advised of deficiencies in performance and conduct (Violation of article 92 of the UCMJ. Failure to complete homework assignments), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

881121:  Futenmia Branch Clinic: Assessment: Adjustment disorder with depressed mood. Plan: Follow up PRN. Extra counseling with chaplain.

 890412:  Medical Entry: Request evaluation for possible ETOH dependence due to patient concern. Assessment/Plan: Pt appears fit DSMIII classification for EOTH dependency. Recommend: Further evaluation, Level III and antabuse.

890419:  Futenma Branch Clinic: A: Alcohol dependency. P: Antabuse 250 mg. Follow up as directed by SACO.

890807:  Evaluation by SACO and GS09: Applicant diagnosed as alcohol dependent. Recommendation: AA, antabuse, in-patient treatment. Recommendation not approved by Lt, MC; felt client has a handle on his problem at this time, and felt also to take a wait and see attitude, directed Level II. Applicant signed and disagreed with the consult.
8909xx:  Applicant involved in DWI. [Extracted from medical record entry dated 891027]

 890926:  Counseling: Advised of deficiencies in performance and conduct (Spouse abuse. In the last two months there have been two reports of spouse abuse by the Applicant. On 890811 the Applicant was warned that action of this type would cause problems. At that time the Applicant stated he was not abusing his wife. On 890915 this office received a report that the Applicant had assaulted his wife on 890914. When confronted, the Applicant admitted striking her and pushing her down. Conduct of this type is a violation of both the Uniform Code of Military Justice (Article 128) and North Carolina Civil Law. Applicant informed he could be court-martialed or taken to civilian court. Conduct of this type also is an indication of a person who needs help. The Marine Corps cannot and will not tolerate conduct such as that outlined above.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action. Applicant did not desire to make a statement.

891027:  Active Duty Sickcall: Applicant to be reevaluated for ETOH dependence. Has continued to drink since last evaluation. DWI Sept 1989. Drinking has affected work. Has continued in spite of family and CO all telling him to stop. Assessment: ETOH dependence. Plan: AA. Antabuse 250 mg. Inpatient treatment.

UNDATED:         Counseling: Advised of deficiencies in performance and conduct (My 891101 alcohol-related incident, specifically, DWI off base, BAC of .1. Corr action: Abstain from driving after consumption of alcohol. Date seen by Substance Abuse Counselor 890802, and assigned to Level II treatment program. Applicant has successfully completed Level II treatment program.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action. Applicant did not desire to make a statement.

891107:  Applicant appeared in Craven County District Court and was convicted of breaking and entering a motor vehicle. Sentence to be confined in North Carolina Department of Corrections for 2 years suspended for 5 years provided Applicant pay $50.00 court cost and $300.00 restitution, $5.00 jail fee, perform 24 hours community service and pay the $100.00 community service fee.

891109:  Medical entry: Assessment: Adjustment disorder with depressed mood. Currently not felt to be at risk for suicide. Plan: Continue seeing Chaplin. Follow up with me in one week.

891218:  Applicant to Alcohol Rehabilitation Department, Naval Hospital, San Diego for Level 3 inpatient treatment and rehabilitation.

900119:  Applicant released from Alcohol Rehabilitation Department, Naval Hospital, San Diego. Discharge diagnosis: Alcohol dependence. He is discharged as non-amenable to treatment. His prognosis is poor.

900201:  Alcohol Rehabilitation Department letter to command concerning AWOL of Applicant.

900307:  Counseled concerning Applicant’s recent alcohol rehabilitation failure and the nearest VA Medical Center.

900315:  NJP for violation of UCMJ, Article 86: UA/AWOL.
         Specification 1: On or about 0700, 900221 was absent from his appointed place of duty to wit: Crash Fire Rescue at Bldg #1791, and did remain so absent until he returned to work at 0955, 900221.
         Specification 2: On or about 0700, 900223, was absent from his appointed place of duty to wit: Crash Fire and Rescue Building $1791, and did remain so absent until 0730, 900223.
         Award: Forfeiture of $405 per month for 2 months, extra duty for 45 days, reduction to E-2. Forfeiture for 1 month suspended for 6 months. Not appealed.

900406:  Applicant notified of intended recommendation for under other than honorable conditions discharge by reason of alcohol abuse rehabilitation failure and misconduct due to a pattern of misconduct. The least favorable characterization possible is under other than honorable conditions. The factual basis for this recommendation was the Applicant’s refusal and failure to participate in his own recovery, coupled with his involvement of a discreditable nature with military and civilian authorities during this enlistment as evidenced by two nonjudicial punishments, two incidents of spouse abuse, arrest by civilian authorities for driving while impaired, conviction in the Craven County District Court for breaking and entering a motor vehicle, and other adverse entries contained on page 11 of service record.

900406:  Applicant advised of rights and having elected not to consult with counsel, elected to appear before an Administrative Discharge Board.

900426:  Applicant waived right to an Administrative Discharge Board.
900503:  Commanding Officer, Headquarters and Headquarters Squadron, Marine Corps Air Station, Cherry Point, NC recommended Applicant’s discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure and misconduct due to a pattern of misconduct.

900509:  SJA review determined the case sufficient in law and fact.

900509:  GCMCA, Commanding General, Marine Corps Air Station, Cherry Point, NC, directed the Applicant's discharge with a under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

900510:  Forfeiture of pay awarded at NJP on 900315 vacated due to continued misconduct.

900510:  NJP for violation of UCMJ, Article 112a:
         Specification: Wrongful use of a controlled substance. On or about 2 May 90 tested positive on a urinalysis for the controlled substance, cocaine.
         Award: Reduction to E-1. No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900511 by reason of misconduct due to a pattern of misconduct with a service characterization of under other than honorable conditions (A and 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). The Board presumed regularity in the conduct of governmental affairs (E).

 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 four retention warnings, and three nonjudicial punishment proceedings for violations of Articles 86, 92 and 112a of the UCMJ. The Applicant’s record is also marred by spousal abuse, drunken driving and a civil conviction for breaking and entering a motor vehicle. 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 denied.

The Applicant implies that his discharge from impatient care precipitated his discharge and that his discharge from care was “improper.” The Applicant further states that he was, “denied treatment, denied support and guidance.” The evidence of record shows that the Applicant left his impatient treatment ward without authority. The Applicant was subsequently discharged from the facility as non-amenable to treatment. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was denied treatment. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. However, even if the Applicant could show he was denied treatment for addiction, such misrepresentations would neither amount to a justification nor to a defense for the Applicant’s own misconduct. Further, the Applicant’s narrative reason for separation is not for alcohol treatment failure, but for pattern of misconduct. The Applicant’s record shows a clear pattern of misconduct from his first counseling for deficiencies in performance and conduct on 19880119 until his last NJP on 19900510. Relief is not warranted.

Regarding the Applicant’s request for a refund of his G.I. Bill contributions or the ability to use veterans benefits for education: The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief is not warranted.

The following if provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.


Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, Misconduct , of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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, Article 111, drunken driving, and Article 121, larceny.
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, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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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