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USMC | DRB | 2005_Marine | MD0501093
Original file (MD0501093.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. MD05-01093

Applicant’s Request
The application for discharge review was received on 20050614. 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 20060517. 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) by reason of alcohol rehabilitation failure.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I am respectfully requesting an upgrade, so I can go to college with the M.G.I. Bill’s help.”
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1 and 4)
Letter of appreciation, dtd August 19, 2003
Fort Peck Tribes verification of employment beginning March 2, 2005
Salish Kootenai College letter of acceptance, dtd February 16, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20020801 - 20020922      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20020923             Date of Discharge: 20040312

 Length of Service (years, months, days):

 Active: 01 05 20
          Inactive: None

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

 Age at Entry: 19

 Years Contracted: 5

 Education Level: 12                                 AFQT: 55

 Highest Rank: PFC                                   MOS: 6257

 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): National Defense Service Medal, Letter of Appreciation, Sharpshooter Rifle Badge

*Not Available


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 :

020801:  Pre-service waiver granted for drug use.

030718:  Counseling: Advised of deficiencies in performance and conduct (Alcohol related incident, specifically found to be consuming beer on or about 20030712.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030724:  MCAS Miramar, Substance Abuse Counseling Center (SACC) Evaluation: Referred to SACC due to being charged with underage drinking by San Diego Police Department. Applicant states already been seen and received Residential Treatment (prior service) in Montana for alcohol dependency at the age of 16. Applicant meets 5 of 7 criteria for alcohol dependency and well as 1 of 4 criteria for amphetamine abuse.
         Provisional diagnosis: Alcohol dependency and amphetamine abuse.
         Recommendation: Residential treatment at NARED, Camp Pendleton CA.
         Applicant agrees with treatment plan.

030818:  Naval Hospital, Camp Pendleton, CA, Substance Abuse Rehabilitation Program (SARP) Department. Applicant entered into partial hospitalization at SARP with a diagnosis of alcohol dependence. Applicant referred to SARP by his Command for underage drinking.

030923:  Naval Hospital, Camp Pendleton, CA, SARP Department. Applicant released from SARP Department.
         Exit Diagnosis: Alcohol dependence.
         Psychoactive substance dependence (methamphetamines - prior to enlistment)
 Disposition: Applicant returned to duty to be placed in a formal one year recovery program. Program includes abstinence, command monitored attendance at a minimum of three AA/AN meetings weekly with court card documentation and weekly follow-up with his SACO.





031021:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation. PFC Y_(Applicant), with knowledge of his liberty travel limitations as stated in Air Base Order 5820.1, on or about 19 Oct 2003, at or near Tijuana, Mexico, was derelict in the performance of those duties in that he willfully failed to remain in the United States without an out of bounds pass.
 Violation of UCMJ, Article 108: Loss of military property. PFC Y_(Applicant) did on or about 19 Oct 2003, at or near Tijuana, Mexico, lose his military identification card.
Violation of UCMJ, Article 134: Disorderly conduct, specifically drunkenness. PFC Y_(Applicant), did on or about 19 Oct 2003, at or near Tijuana, Mexico as a result of wrongful previous overindulgence in intoxicating liquor or drugs, incapacitated himself from proper performance of conduct
         Award: Forfeiture of 1/2 of months pay for 2 months, correctional custody for 30 days, reduction to E-1. Forfeiture and reduction suspended for 6 months. Not appealed.

031022:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for a period of 6 months due to NJP suspended sentence and advised that failure to take corrective action may result in administrative separation or limitation of future service. Applicant chose not to make a rebuttal.

031027:  Forfeiture of pay and reduction in pay grade awarded at NJP on 031021 vacated.

 040309:  Applicant found physical qualified for separation.

 040312:  DD Form 214: Applicant discharged with a general (under honorable conditions) by reason of alcohol rehabilitation failure, authority: MARCORSEPMAN, Par. 6209.

 Service Record Book did not contain the Administrative Discharge package. Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040312 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 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 educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. A general 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 received a retention warning as a result of being charged with underage drinking by civil authorities. The Applicant violated the retention warning and was the subject of nonjudicial punishment proceedings for violations of Articles 92 (failure to obey order or regulation), 108 (loss of military property), and 134 (disorderly conduct, drunkenness) of the UCMJ. A portion of the NJP award was suspended but was vacated 6 days later due to the Applicant’s continued misconduct. 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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The Applicant provided a letter of verification of employment and a letter of acceptance to college as documentation of post-service accomplishments. While the NDRB acknowledges the Applicant’s accomplishments, the Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced documentation of community service, evidence of sobriety and alcohol rehabilitation, and certification of non-involvement with civil authorities. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge. Therefore, no relief will be granted.

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 additional evidence related to this 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 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 .

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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