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USMC | DRB | 2006_Marine | MD0600373
Original file (MD0600373.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. MD06-00373

Applicant’s Request
The application for discharge review was received on 20050629 . 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 20061102 . 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 issue s, as stated on the application:

“To assist with further education and living expenses
To assist with VA benefits”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1 and 4)
Reference letter from M_ M_, LCDP, NCGC II, Kent House Inc., dtd December 28, 2004
Reference letter from R_ M. B_, M. Ed., LCDS, Bailey Associates, dtd March 28, 2005
Student transcript, New England Institute of Technology , dtd April 12, 2005 (5 pages)
Letter from Applicant dtd March 18, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19980930 - 19981102       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19981103              Date of Discharge: 20011207

Length of Service (years, months, days):

 Active: 0 3 0 1 0 5 (does not exclude lost time)
         Inactive: None

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

Age at Entry: 20

Years Contracted: 4

Education Level: GED                        AFQT: 42

Highest Rank: LCpl                                   MOS: 0331

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 ( 9 )                                Conduct: 3.8 ( 9 )

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): SSDR, REX (3d Awd), PEX

*DD214 indicates 1 day of lost time on 20010910.


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 :

980924 :  Pre-service waiver granted.

000925 :  NJP for violation s of UCMJ :
 Article 86 : In that SNM, did at Sal m on ID, on or about 0001, 000917, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: Lt J_ and did remain so absent until 0245, 000917.
Article 92 : In that SNM, having knowledge of a lawful order issued by Lt J_ to return back to the base camp by 2359, 000916, an order which it was his duty to obey, did at Salmon ID, on or about 0001, 000917, fail to obey the same by not returning until 0245, 000917.
Article 92 : In that SNM , having knowledge of a lawful order issued by 1stLt J_ to get in his tent and go to sleep, an order which it was his duty to obey, did at Salmon ID, on or ab out 0245, 000917, fail to obey the same by not doing so after being repeatedly told to.
Article 134: In that SNM, was at Salon ID, on or about 0245, 000917, drunk and disorderly by being obnoxious, belligerent and disrespectful to 1stLt J_, and 1stSgt G_.
         Award: Forfeiture of $ 273.00 per month for 1 month and 7 days CCU.

001109:  Applicant to Intensive Outpatient Treatment. [Extracted from ATF, CLNC ltr dtd 011116]

 001129 :  Acknowledged understanding of eligibility but not recommended for promotion to Cpl due to recent NJP dtd 000925 . Applicant chose not to make a statement.

001201:  Applicant completed Intensive Outpatient Treatment. [Extracted from ATF, CLNC ltr dtd 011116]
001211:  Counseling: Advised of deficiencies in performance and conduct (Conviction of drunk and disorderly as per NJP held on 000925, UA from 0001-0245 on 000917, failure to obey lawful orders from his PltCmdr to return ba ck to base camp while in Salmon ID at 0001 on 000917 and when he did return he refused to go into his tent and sleep.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010108:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the Jan-Mar qtr, 2001, due financial irresponsibility . Applicant chose not to make a statement.

010108:  Counseling: Advised of deficiencies in performance and conduct (Financial irresponsibility in that his unit received notice from MCCS that he had 3 insufficient checks that totaled $240.95.), necessary corrective actions explained, sources of assistance provided and disciplinary and discharge warning issued.
010110:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for Feb 2001 due to irresponsible actions .

010423:  Alcohol Treatment Facility Substance Abuse Report Evaluation: Applicant evaluated on 010401. Diagnosis: Alcohol Dependence. Recommendations: Process for administrative separation. Individual should be held accountable for all actions. Weekly visits with SACO until discharge. Service member was a treatment failure due to not adhering to the rules and regulations of the ATF, CLNC.
010507 :  Counseling: Advised of deficiencies in performance and conduct ( (1) d runk and disorderly; (2) assault (x2); (3) insubordination to an NCO; (4) disobeying a lawful written order not to drink until all of ATF treatment was complete as per the NJP held on 010504 ) necessary corrective actions explained , sources of assistance provided and advised being processed for separation due to ATF failure.

010511 :  NJP for violation s of UCMJ :
 Article 91 : In that SNM, at Camp Lejeune, NC, on or about 2220, 010330, was disrespectful in language and deportment toward Cpl H_, a NCO, then known by the SNM to be a NCO, who was in the execution of his office, by threatening to kill Cpl H_, and warning him not to sleep in his room that night.
Article 92: In that SNM, having knowledge of a lawful order issued by Capt E_ not to drink alcohol until all ATF treatment was completed, an order which it was his duty to obey, did at Camp Lejeune, NC on or about 2220, 010330, fail to obey the same by wrongfully consuming alcohol without having completed ATF treatment.
Article 128: In that SNM, did at Camp Lejeune, NC on or about 2220, 010330, assault LCpl W_ by pushing him against the wall, and later coming behind LCpl Wade putting him on a head lock and pressing against LCpl W_’s neck with a pen.
Article 128: In that SNM, did, at Camp Lejeune , NC, on or about 2220, 01330, assault LCpl S_ by swinging a beer bottle and also swinging an ink pen around threatening to use it on LCpl S_.
 Article 134: In that SNM, was, at Camp Lejeune, NC , on or about 2220, 010330, drunk and disorderly which conduct was of a nature to bring discredit upon the armed forces.
         Award: Forfeiture of $ 584.00 per month for 1 month, restriction for 60 days, reduction to E- 2 . Not appealed.
010729 :  Applicant notified of intended recommendation for discharge as general (under honorable conditions) by reason of alcohol rehabilitation failure. The factual basis for this recommendation was the Alcohol Treatment Facility Substance Abuse Report in which separation from the Marine Corps is recommended by the Clinical Director, M. A. P_, enclosure (6) . Applicant informed the least favorable character of service possible was general (under honorable conditions) .

010729 :  Applicant advised of rights and having consulted with counsel, elected to obtain copies of the documents used to support the basis for the separation.

010729 :  Commanding Officer, 3d Battalion, 2d Marines, recommended Applicant’s discharge with a general (under honorable conditions) character of service by reason of alcohol rehabilitation failure. The factual basis for this recommendation was Applicant’s failure and refusal of alcohol rehabilitation treatment. C ommanding Officer’s comments: “Based upon enclosures (1) through (9), and an interview with Lance Corporal W _ it is my opinion that Pvt W _ cannot contribute to our Corps. He cannot make good decisions about drinking. He has no further potential. ”

011115:  Applicant counseled regarding availability of treatment at a Veteran’s Administration Hospital.

 011116:  Admissions Coordinator, Alcohol Treatment Facility, CLNC. Applicant attended Intensive Outpatient Treatment 001109 thru 001201. He successfully completed with a poor prognosis. He was seen for an additional alcohol related incident on 010410. Due to the service member having an additional alcohol related incident, not following up with his continuing care recommendations of 3 AA meetings per week and weekly SACO meetings. He appeared not to be willing to take a serious look at his drinking and was resistant to making goals pertaining to his use.

011126 :  SJA review determined the case sufficient in law and fact.

 011130 :  GCMCA, Commanding General, 2d Marine Division, directed the Applicant's discharge with a general (under honorable conditions) character of service by reason of alcohol rehabilitation failure.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011207 by reason of alcohol rehabilitation failure (A and B ) with a service characterization of general (under 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 ).

When a Marine’s service 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’s service was marred by two retention warnings and two nonjudicial punishment proceedings for violations of Articles 86, 91, 92, 128 and 134 of the UCMJ. Violations of Articles 91, 92 and 128 are considered serious offenses. Serious offenses are punishable by punitive discharge if adjudged as part of the sentence upon conviction at special or general court-martial. 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 is not warranted.

The Applicant requests a change in the character of service to “further education and living expenses” and obtain benefits. 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 would be inappropriate.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Naval service. The NDRB 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. The Applicant provided documentation concerning educational achievements and sobriety efforts. Examples of additional documentation that should be provided to the Board include verifiable employment records, documentation of community service, credible evidence of a continued substance-free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. 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. 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. 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 91, insubordinate conduct, Article 92, failure to obey order/regulation or Article 128, assault.

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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