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USMC | DRB | 2006_Marine | MD0600179
Original file (MD0600179.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD06-00179

Applicant’s Request
The application for discharge review was received on 20051101. 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 a letter, dated November 8, 2005, the Applicant was informed that he was approaching the 15-year point for review by this Board and my only be eligible for one review before our Board. The Applicant did not respond.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20060915 . 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 separation in lieu of trial by court-martial.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:
“ The statements I am going to make are what I feel and know. I received my discharge d because of mistakes I committed and I strongly believe people should pay for his mistakes if warranted. The problem is all my problems were alcohol related. What surprised me is how quick they would prosecute me but how slow they were to help me if any. I once a marine we were all brothers there to help each other. But my experience show me that minorities always suffered while everyone else walked. Everything the recruiters fed was not true they were right about hard work, and sacrifice but they never told me about the double standards and how I would become aggressive and not so friendly. I believe that if you are not a model marine then you didn’t get the help you need. From the beginning it was not a good experience like it should ha ve been. It really made wonder why they promoted such words a s honor, loyalty especially simper fidelis, (always faithful). I am in no way defaming the Marine Corps. I have always been very proud of being a marine. I just feel that I deserve a chance to walk proud again. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, dtd April 24, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19870225 – 19870909               COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 19870910              Date of Discharge: 19911127

Length of Service (years, months, days):

 Active: 0 4 2 1 7 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              71 day s

Age at Entry: 1 7 (Parental Consent)

Years Contracted: 4

Education Level: 12                                 AFQT: 58

Highest Rank: LCpl                                   MOS: 2145

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 3 ( 12 )             Conduct: 4 .1 ( 12 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert Badge (4 th Award), National Defense Service Medal, Sea Service Deployment Ribbon


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/Conduct triable by courts-martial (request for discharge for the good of the service), authority: MARCORSEPMAN Par. 6419

 Chronological Listing of Significant Service Events :

870827 :  Moral waiver for Indep drug use approved.

870910:  Moral waiver approved.
881115:  NJP for violation of UCMJ, Article 86: UA 0730, 881109 to 1045, 881109 from GSMCo, 2dMainBn, 2D FSSG morning formation.
 Award: Forfeiture of $182.00, restriction for 14 days(suspended for 6 months), extra duty for 14 days. No evidence of appeal on the record .
881209:  Restriction awarded at NJP on 881115 vacated due to continued misconduct.
881209:  NJP for violation of UCMJ, Article 134: Did at CamLej, NC on or about 0100, 5 Nov 88, drive while impaired.
         Violation of UCMJ, Article 92: Having knowledge of a lawful written order, to wit: BO 5353.2, an order which it was his duty to obey, did at CamLej on or about 5 Nov 88, drinking underage.
         Award: Forfeiture of $156.00 pay per month for 1 month, restriction and extra duty for 14 days. No evidence of appeal on the record .
890127:  Medical evaluation by CDAC, CLNC. Client was referred as a result of a command referral because of two DWI in the last three months.
         Diagnostic Impression: A lcohol Abuse, 305 XIS I:
          Recommendation: 1. Substance abuse workshop, 3 APR . 89 until 7 April 1989. 2. Re-screen closely during SAW.
         Note: “But Watch Him”.
890130 :  NJP for violation of UCMJ, Article 86 : Did, at GSMCo, 2dMainBn, 2DFSSG, fail to go at the time prescribed to morning formation, Bldg 1601, at 0700, on 890121 .
 Award: Forfeiture of $ 189. 00 pay per month for 1 month, restriction and extra duty for 14 days. No evidence of appeal on the record .
890206:  Competency for duty exam. 18 yo for competency for duty exam – patient states he went out last pm and does not know how much he drank or where he went. Pt wok e up at PMO- 2 recent convictions for DUI – been through level I – tolerance of 8-9 beers can drink much more – gait very deliberate – thought process lethargic – coordination slow – alcohol on breath very strong –
1.       Unfit for duty because of intoxication (ETOH)
2.       legal ETOH level drawn
3.       RTC PRN
890209:  To confinement.

890317:  Special Court-Martial. Charge I: violation of the UCMJ, Article 86:
          Specification: Failure to go. Plea : Guilty. Finding : Guilty.
         Charge II: violation of the UCMJ, Article 109:
          Specification: Damage of personal property. Plea : Not Guilty. Finding : Withdrawn. Charge III: violation of the UCMJ, Article 121:
         Specification: Steal NC Driver License. Plea : Not Guilty. Finding : Withdrawn. C harge IV: violation of the UCMJ, Article 134: (2 specs):
 Spec 1: Incapacitated for performance of duties. . Plea : Guilty. Finding : Guilty. Spec 2: Break restriction. Plea : Guilty. Finding : Guilty.
         Sentence: Forfeiture of $250.00 pay per month for 2 months, reduced to E-2, 85 days CHL. CA action 890523: Sentence approved and ordered executed.
890420:  From confinement.

 890503:  Counseling: Advised of deficiencies in performance and conduct (Repeated violations of the UCMJ; Specifically violations of articles 86, 92 and 134.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
890710:  Counseling: Advised of deficiencies in performance and conduct ( Unsuccessful treatment of his psu e dofolliculitis barbae .), No other corrective action required or recommended for this conditions , sources of assistance provided . Advised will be processed .
891005:  Counseling: Advised of deficiencies in performance and conduct (Disapproval of Applicant’s administrative separation for psuedofolliculitis.), sources of assistance provided.
891005:  Counseling: Advised of deficiencies in performance and conduct (Applicant’s 03 Oct 89 civilian conviction for DUI (BAC .18) on 21 Jan 89.), Applicant directed to refrain from using any alcohol due to Applicant’s current age and passed incidents of alcohol abuse, sources of assistance provided.
910220:  Counseling: Advised of deficiencies in performance and conduct (Inability to maintain sufficient funds in checking account to cover the amount of checks written.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910402:  Competency for duty exam. Referred because of strong odor of alcohol on breath. SNM acknowledged heavy drinking in pm. Unable to check BAC until tomorrow. Recommend SIQ until 0700 4/3/91. For persistent occupational dysfunction SNM requires Level III treatment or administrative separation.

910410:  Counseling: Advised of deficiencies in performance and conduct (Frequent involvement with alcohol in connection with Applicant’s alcohol related incident on 910402 in which I was unable report to my work section due to acute intoxication.), necessary corrective actions explained, sources of assistance provided.
910429:  Applicant assigned to weight control program his date.
910501:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of May due to writing bad checks, weight control and alcohol related incident. Applicant chose not to make a statement.
910710:  VA Treatment Statement of Understand. Applicant acknowledges that he has been evaluated by a medical officer and diagnosed as being dependant. The Applicant does not desire to be enrolled in the VA drug and alcohol rehabilitation program in conjunction with his discharge. Further, the Applicant neither desires or requests the VA’s drug and alcohol rehabilitation program in conjunction with his discharge. Applicant advised of address of the VA hospital/facility which can provide treatment nearest his home of record.

910724:  Report of Medical Examination: Alcohol depende ncy needs treatment (Mar ’91). Recommended for Alcohol Rehabilitation via VA facility. Qualified for separation from the USMC.

911002:  Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86: In that Lance Corporal J_ R_ (Applicant), U.S. Marine Corps, Headquarters and Service Company, 1 st [sic] Armored Assault Battalion, 3d Marine Division (-) (Reinforced), Fleet Marine Force, did, at Camp Schwab, Okinawa, Japan, on or about 0730, 16 August 1991, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Headquarters and Service Company battalion Maintenance, building 3210; Article 121 (3 specs), Spec 1: In that Lance Corporal J_ R_ (Applicant), U.S. Marine Corps, Headquarters and Service Company, 1 st [sic] Armored Assault Battalion, 3d Marine Division (-) (Reinforced), Fleet Marine Force, did, at Camp Schwab, Okinawa, Japan, on or about 2 August 1991, wrongfully appropriate a 1983 Mazda automobile, Okinawa registration #Y-29-39, of a value of about $1, 500.00, the property of Lance Corporal S_ D. G_, U.S. Marine Corps; Spec 2: In that Lance Corporal J_ R_ (Applicant), U.S. Marine Corps, Headquarters and Service Company, 1 st [sic] Armored Assault Battalion, 3d Marine Division (-) (Reinforced), Fleet Marine Force, did, at Camp Schwab, Okinawa, Japan, on or about 15 August 1991, wrongfully appropriate a 1983 Mazda automobile, Okinawa registration #Y-29-39, of a value of about $1, 500.00, the property of Lance Corporal S_ D. G_, U.S. Marine Corps; Spec 3: In that Lance Corporal J_ R_ (Applicant), U.S. Marine Corps, Headquarters and Service Company, 1 st [sic] Armored Assault Battalion, 3d Marine Division (-) (Reinforced), Fleet Marine Force, did, at Camp Schwab, Okinawa, Japan, on or about 15 August 1991, wrongfully appropriate $50.00 in U.S. Currency, the property of Lance Corporal S_ D. G_, U.S. Marine Corps; Article 111: In that Lance Corporal J_ R_ (Applicant), U.S. Marine Corps, Headquarters and Service Company, 1 st [sic] Armored Assault Battalion, 3d Marine Division (-) (Reinforced), Fleet Marine Force, did Okinawa, Japan, on or about 15 August 1991, at Camp Schwab, Okinawa, Japan, and Henoko Okinawa, Japan, operate a vehicle, to wit: 1983 Mazda automobile, Okinawa registration #Y-29-39, while drunk; Article 134: In that Lance Corporal J_ R_ (Applicant), U.S. Marine Corps, Headquarters and Service Company, 1 st [sic] Armored Assault Battalion, 3d Marine Division (-) (Reinforced), Fleet Marine Force, did, at Camp Schwab, Okinawa, Japan, on or about 15 August 1991, unlawfully enter barrack #3425, room 107, the dwelling of Lance Corporal S_ D. G_ and Private First Class C_ W. H_, U.S. Marine Corps.

 911009:  Applicant assigned to military legal hold.
911009 :  Charges referred to special court-martial .

911010 :  Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial. In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses. He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other honorable conditions. The Applicant admitted guilt to the following violations of the UCMJ, Article s 86, 121(3 specs), 111, and 134 .
911017 :  SJA recommended that the Applicant’s request for discharge be approved .

911021 :  GCMCA, Commanding General, 3 rd Marine Division directed the Applicant's discharge under other than honorable conditions by reason of in lieu of trial by court-martial pursuant to paragraph 6419 reference (a) .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19911127 in lieu of trial by court-martial (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 Applicant contends that his problems in the Navy can be attributed to his "overindulgence in alcohol." The Applicant also alleges that he was not properly afforded help for his alcohol related problems. While he may feel that his abuse of alcohol and perceived lack of treatment were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The record does not support Applicant’s claim that he was not afforded assistance for his alcohol related problems. The record indicates that the command made numerous attempts to assist the Applicant. The Applicant was referred for alcohol screening and was provided Level I treatment after his first alcohol related incident in 1988. He was subsequently referred to the hospital on two occasions for competency for duty exams. The record shows that his command counseled and offered him assistance for alcohol related misconduct on two additional occasions. His record shows another command referral for alcohol dependency screening in 1991 which resulted in a recommendation for further treatment. The Applicant was awaiting inpatient Level III treatment when he committed the misconduct for which he was discharged. Even after the Applicant misconduct was identified, he was offered alcohol treatment through the VA. The Applicant refused that treatment. Relief on this basis is not warranted.

In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. The Applicant stated he understood the elements of the offenses with which he was charged. He admitted he was guilty of violating Article 86, 121 (3 specs), 111, and 134. V iolations of the UCMJ, Article 92(failure to obey an other lawful order), 109(destruction of property), 121 (wrongfully appropriation), 111 (drunk driving), and 134 (unlawful entry) are considered serious offenses for which a punitive discharge is warranted at courts martial . Relief denied.

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. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective
01 September 2001 until Present.

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 an other lawful order), 109(destruction of property), 121 ( wrongfully appropriation), 111 (drunk driving), and 134 (unlawful entry) .

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 .


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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