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USMC | DRB | 2005_Marine | MD0501495
Original file (MD0501495.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. MD05-01495

Applicant’s Request
The application for discharge review was received on 20050907. 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 20060607. 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 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 to the Board:

“I was dealing with the disease of Alcoholism during my period of enlistment. I was a good marine but had a bad drinking problem. I did a 28 day military rehab. but it wasn’t enough. I served my entire enlistment and would be proud and honored with a upgrade of discharge. I am a father of three trying to improve my life. A upgrade of discharge would greatly help me with employment, education, and medical opportunities for myself as well a my children. I am in the program of Alcoholics Anonymous and have changed my life for the best. I am blessed with being able to help other veterans in their struggle with alcoholism by showing them how to live clean and sober lives thru my experience. An upgrade of discharge would also renew my sense of pride and accomplishment in serving my country.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2)
Character Reference ltr from D_ M_, Manager, undated
Character Reference ltr from J_ C_, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19920131 – 19920211               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19920212             Date of Discharge: 19960211

 Length of Service (years, months, days):

 Active: 03 11 29
         Inactive: None

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

 Age at Entry: 21

 Years Contracted: 4

Education Level: 12                                 AFQT: 53

 Highest Rank: LCpl                                  MOS: 3381

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (9)                                Conduct: 4.2 (9)

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


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 :

930312:  Counseling: Advised of deficiencies in performance and conduct (Failure to report to appointed place of duty at the prescribed time; failure to follow orders.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
930712:  NJP for violation of UCMJ, Article 86: UA (AWOL) from 0800, 930621 to 0900, 930621 and 0300, 030701 to 0340, 930701.
 Award: Forfeiture of $96.00 pay per month for 1 month, restriction for 14 days. 14 days restriction suspended for 6 months. Not appealed.
930714:  Counseling: Advised of deficiencies in performance and conduct (Failure to appear for rifle range snapping –in class.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

941227:  Medical Evaluation: Applicant referred for evaluation due to depressed mood.
         Axis I: Major Depressive Episode 296.22, ETOH Dependence 303.90, Life Circustance Problems V62.89
         Axis II: Dependent Traits
         Axis III: None
         Plan: Not fit for full duty and is not recommended for deployment. Refer to SACO to initiate Level III. Will likely need follow up care with psychiatry after Level III

950309:  Applicant eligible but not recommended for promotion to Corporal for the months of Dec 94, Jan 95, and Feb 95 because of three recent DUI’s. Applicant chose not to make a statement.

950310:  NJP for violation of UCMJ, Article 92 (2 specifications) and 111: At H&Sco, H&SBn, MCB, CamPen. Violation of written order, BaseO P5000.2h, 0100, 940608 SNM violated the order by driving on base while intoxicated. Violation of written order, BaseO P5000.2h, 2100, 941224 SNM violated the order by failing to have his “DOD” vehicle decal removed. Drunken driving, 0100, 940608 SNM was driving a motor vehicle while intoxicated.
         Award: Forfeiture of $478.00 pay per month for 2 month (suspended for 6 months), restriction for 60 days (suspended for 6 months). Not appealed.

950511:  NJP for violation of UCMJ, Article 92: At H&SCo, H&SBn, MCB, CamPen. Violation of written order.
Specification: SNM did violate the order by driving a motor vehicle while on base suspension.
          Award: Forfeiture of $223.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 14 days (suspended for 6 months). Not appealed.

950511:  Counseling: Advised of deficiencies in performance and conduct (Violating Article 92 – driving a motor vehicle while under a base suspension and Article 134 – damage to private property.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950516:  Commanding Officer, Naval Hospital, Camp Pendleton: Applicant evaluated before a Medical Board. Diagnosis: Major Depressive Disorder, Alcohol Dependence. Limitations: None. Disposition: Return to full duty.

950614:  Applicant admitted to Naval Addictions Rehabilitation and Education Department, Naval Hospital, Camp Pendleton, CA on 17 May 95 with a diagnosis of alcohol dependence. Applicant was treated with individual, group and milieu therapy. Applicant attended 12 Step meetings on a daily basis. He was placed on Antabuse 250mg po qd.
         Discharge Diagnosis: Alcohol Dependence and Adult Child of an Alcoholic.
         Discharge Medication: None.
         Disposition: Return to duty to be placed in a one year aftercare program in accordance with MCO P5300.12. This should include command monitored attendance at a minimum of three AA and 1 CODA meetings weekly, and continuing care counseling with his local CSACC.

950917:  Naval Hospital Camp Pendleton: Applicant presented with recent suicide gesture (threatened to cut wrist). Applicant stated tumultuous marital relationship is result of alcoholism. Also stated that he may be Admin Separated from USMC for treatment failure.
         Diagnosis: Axis I: Alcohol Dependence – partial remission, situational depression, Marital problem
         Axis II: Deferred
         Axis III: unreadable
         Axis IV: Moderate
         Axis V: 70 GAF
         Plan: Return to duty under treatment
         Recommend Admin Separation in accordance with SepMan Ch 6, Sec 2 para 6209.

950925:  NJP for violation of UCMJ, Article 86 (5 Specs): UA from 0800-1630 on 950707. UA fro 0800-1630 on 950714. UA from 0800-1630 on 950728. UA from 0800-1630 on 950901. UA from 0800-1630 on 950908.
         Award: Forfeiture of $233.00 pay per month for 2 months (suspended for 2 months), reduction to E-1, and restriction and extra duties for 45 days. Not appealed.

950925:  Counseling: Advised of deficiencies in performance and conduct (Article 86 – Unauthorized Absence.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

951129:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to pattern of misconduct. The factual basis for this recommendation was recurring incidents of violations of written orders, and unauthorized absences, resulting in four nonjudicial punishment and four page 11 SRB 6105 counseling entries.

951129:  Applicant advised of rights and having elected not to consult, elected to appear before an Administrative Discharge Board. Applicant desire to obtain copies of documents used to support the basis for the separation.
951129:  Commanding Officer, Headquarters and Service Battalion, School of Infantry, recommended to Commanding General, Marine Corps Base, Camp Pendleton, via Commanding Officer, School of Infantry, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct. The factual basis for this recommendation is Pvt H_’s recurring incidents of violations of base orders, and unauthorized absences totaling 25 hours. His intolerable actions over the course of the last two years have resulted in four nonjudicial punishments and four page 11 6105 counseling entries. Commanding Officer’s comment: “By his persistent flouting of military authority, rules, and regulations, Pvt H_ has demonstrated that he is incapable of honorable military service in the Marine Corps.”

951211:  Commanding Officer, School of Infantry, forwarded the recommendation to Commanding General, Marine Corps Base, Camp Pendleton, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments: “Pvt H_ (Applicant) has clearly demonstrated that he is unwilling to conform his behavior to that expected of a young Marine. Following his first period of unauthorized absence, totaling 1 hour and 40 minutes resulting in nonjudicial punishment, Pvt H_ (Applicant) was counseled and warned as to the consequences of engaging in further misconduct. His response was a continued pattern of misconduct involving other incidents indicative of his persistent flouting of military authority. By his actions, Pvt H_ (Applicant) has demonstrated that he is incapable of honorable military service.”

960124:  Report of Medical Examination: Applicant qualified for discharge.

960130:  Applicant unconditionally waived right to hearing before an Administrative Discharge Board.

960207:  SJA review determined the case sufficient in law and fact.

960207:  Commanding General, Marine Corps Base, advised by the Commandant of the Marine Corps (MMSB), that the Applicant was directed discharged under other than honorable condition by reason of misconduct due to pattern of misconduct.

960211:  DD Form 214: Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960211 by reason of misconduct due to a pattern of misconduct (A) 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 (B and C).

 The Applicant implies that his discharge was improper since he served his entire enlistment. By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant. The Applicant was discharged under other than honorable conditions by reason of misconduct due pattern of misconduct. A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation by virtue of his four NJPs on 19930712, 19950310, 19950511, and 19950925 and four retention warning entries on 19930312, 19930714, 19950511, and 19950925. The Applicant was awarded NJP for violations of UCMJ Articles 86 (6 specifications) Absence without leave; 92 (3 specifications) Failure to obey order, regulation; 111 Drunken driving. The record further reveals that the Applicant was properly processed and notified of separation by reason of misconduct due to pattern of misconduct on 19951129 with a least favorable characterization of under other than honorable conditions. On 19951129, the Commanding Officer, Headquarters and Service Battalion, School of Infantry, recommended to the Commanding General, Marne Corps Base, Camp Pendleton, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct. On 19960207, the Commanding General, Marine Corps Base, directed the Applicant’s discharge. Based upon the above review, the Board unanimously concluded that the Applicant’s discharge processing was in substantial compliance with applicable statutes, rules, and regulations. While the Applicant was discharged on his end of active service date, the Board could find no error of fact, law, procedure, or discretion that might afford the Applicant relief. Thus, the Board concluded that relief is not warranted.

The Applicant contends that he was a good Marine dealing with the disease of Alcoholism. When reviewing a discharge, the Board considers the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The Board generally does not consider the circumstances surrounding the Applicant’s stated condition nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct. The Applicant’s records reveal that he was diagnosed as alcohol dependent. The Applicant was treated at Naval Addictions Rehabilitation and Education Department from 19950517 to 19950614. Following treatment, the Applicant was placed in a one-year after care program, which included command monitored attendance at a minimum of three AA and one CODA meetings weekly and continuing care counseling with his local CSACC. On 19950917, competent medical authority recommended the Applicant’s discharge due to alcohol rehabilitation failure; however, the Applicant was discharged due to pattern of misconduct. The Board sees no connection between the Applicant’s misconduct and his diagnosed alcohol dependency. The Applicant’s misconduct began before his diagnosis and continued after treatment. Relief denied.

The Applicant is advised that 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 or enhancing employment and educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. These issues do not serve to provide a foundation upon which the Board can grant relief. Relief on this basis is denied.

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 his efforts need to be more encompassing to include evidence of continuing educational pursuits, 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 his 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 post-service accomplishments or any other evidence related to the 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 18 Aug 95 until 30 Jan 97.

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 .




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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