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USMC | DRB | 2006_Marine | MD0600401
Original file (MD0600401.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. MD06-00401

Applicant’s Request
The application for discharge review was received on 20060110 . 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 20061108 . 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 request an upgrade of my discharge because I feel that I was not mature enough at the time of discharge to make good career decisions and the Marine Corps did not afford me the opportunity for appropriate counseling until the time of discharge and have not been in any trouble. I no longer have a drinking problem and have kept steady employment and am enrolled in community college. I have also attached a personal statement outlining further justifications. Lastly, I would love to reenter the military and serve my country.”
Additional issues submitted by the Applicant in a letter attached to his application:

“To whom it may concern:
 My name is C_ V_ (Applicant) and I am a 21 year old retail assistant manager at Aeropostale. I was in the Marines from August of 2001 through November of 2003. I was discharged with an other than honorable discharge for several incidents of underage drinking. Since my discharge I have gotten in no trouble what so ever, and I have maintained my current job at Aeropostale for over a year. I do enjoy my job, but I know their are bigger and better things meant for me in life. I firmly believe that I was meant for military life, and need to get back in and out of this “vacation” life style. From the high-in-tights to the P.T. at 4 in the morning, I loved everything about the Marines. I loved visiting Foreign countries and getting respect From people I didn’t even know just for being in and wanting to protect them. All my life I have wanted to do things that only a select Few or even nobody could or would do. I wanted to be a superman type person. I love helping people, and love being looked up to. The re-entry code that I received made it where I Felt I could never do any of this again. It makes me feel low and miserable. Im going to be very pertinent and just say that I need this RE code upgraded because in alot of ways my dreams and hopes and life all depend on it. I have friends that are over in Iraq fighting as we speak, and I have to sit here and sell clothes to all these people who are trying to save a dollar, when I should be fighting beside my Friends trying to save a life. I know that I had these underage drinking incidents, but I have grown since then. Ironically turning 21 made me not want to drink. I never had a drinking problem, I was just having a problem with maturity. I know that I have lived and learned From this mistake and this “eye-opener” will not be forgotten. I have no doubt in my mind that the military needs me just as much as I need it. So do you think their something that we can do about this ? All I want to do is serve my country, and help my friends. I am all heart and could be a very valuable asset for uncle sam. ”



Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
 Privacy Release Form from the office of Congressman, A_ G_, dtd July 29, 2005
Letter of character reference from Rev. J_ M_, dtd August 5, 2005
Letter of character reference from K_ N_, not dated
Letter of recommendation from A_K. S_, dtd October 16, 2005 (not signed)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         
         Inactive: USMCR (DEP)    20010 628 – 200 1826       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20010827              Date of Discharge: 20031105

Length of Service (years, months, days):

 Active: 02 02 09 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 0 day s
         Confinement:              0 day s

Age at Entry: 1 7 (Parental Consent)

Years Contracted: 4

Education Level: 12                                 AFQT: 52

Highest Rank: LCpl                                   MOS: 0151

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (6)               Conduct: 3.8 ( 6 )

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert Badge, Sea Service Deployment Ribbon, National Defense Service Medal



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 :

010627 :  Pre-service waiver for drug use and law violations (serious offenses) granted.

020308 :          NJP for violation of UCMJ, Article 92 : At the Quality Inn, Jacksonville, North Carolina on or before 2245, 2 Mar 2002, violated CJAO 1700.1G by consuming alcohol under the legal age of 21.
         Article 134: At or near Quality Inn, Jacksonville, North Carolina, on or before 2245, 2 Mar 2002, was drunk and disorderly.
         Award: Forfeiture of $ 300.00 per month for 2 month s , restriction and extra duty for 30 days . Forfeiture of $300.00 pay per month for one month , and 24 days restriction and extra duty suspended for a period of 3 months, at which time, unless sooner vacated, will be remitted without further act (total forfeiture suspended $300.00) Not appealed.
020821:  Counseling: Advised of deficiencies in performance and conduct (alcohol related incident that occurred on 020817 at the vicinity of Gate #2 Street, Kadena AFB, OKI), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
02083 0 :  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of Sep due to NJP. Applicant chose not to make a statement.
020910:          NJP for violation of UCMJ, Article 90: At HQCo 4thMar 3dMarDiv, on or about 17 Aug 02, in the vicinity of Gate 2 Street, PFC V_ (Applicant) willfully disobeyed LtCol G_’s order to move and let the medical personnel do their job.
         Article 92 : At HQCo 4thMar 3dMarDiv, on or about 17 Aug 02, PFC V_(Applicant) did fail to obey a lawful regulation, to wit: Regimental Order 1700.1a dtd 18 Apr 01 paragraph 5a, by consuming alcohol beverage under the age of 21.
         Article 134: At HQCo 4thMar 3dMarDiv, on or about 17Aug 02, PFC V_ (Applicant) did on or about 17 August 2002, in the vicinity of Gate 2 Street, wrongfully interfered with a police investigation.
          Article 134: At HQCo 4thMar 3dMarDiv, on or about 17 Aug 02, in the vicinity of Gate 2 Street, PFC V_ (Applicant) was drunk and disorderly which conduct was of a nature to bring discredit upon the Armed Forces.
Award: Forfeiture of ½ month pay for 2 months (total forfeiture $1022.00) correctional custody for 30 days, reduction to E-1. Not appealed.

020930:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of Oct due to NJP. Applicant chose not to make a statement.
021031:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the month of Nov due to NJP. Applicant chose not to make a statement.
030609:  Counseling: Advised of deficiencies in performance and conduct (misconduct for the alcohol related incidents; underage drinking and conduct of a nature to bring discredit on the Armed Forces that occurred on 8 June 03), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030611:  Substance Abuse Rehabilitation Department, Treatment Evaluation ICO Private First Class C_ M. V_ (Applicant). The Applicant was seen in consultation on 11 June 2003 by SSgt R_ W_ II, Substance Abuse Counselor. The evaluation does not reveal a pattern of alcohol abuse, which indicates a substance abuse disorder.
         Recommendations: Upon completion of required physical, the Applicant is scheduled for Intensive Outpatient treatment at the Counseling Center (Bldg 440) Camp Foster. While awaiting treatment, the Applicant should maintain weekly meetings with the command SACO and attend two Alcoholic Anonymous meetings per week.

030616:  USNH Okinawa Alcohol Rehabilitation Department Health and Physical Evaluation. Applicant examined and determined to be eligible for ARD/SACC alcohol treatment.

 030617 :  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation. In that PFC V_ (Applicant), having knowledge of a lawful order, on order which it was his duty to obey, did, on or about 8Jun 03, 2050, fail to obey the same by drinking in the town of Kin Village underage.
Violation of UCMJ A rticle 134: Disorderly conduct. In that PFC V_ (Applicant), was, on or about 8 Jun 03, 2050, was drunk and disorderly, which conduct was of a nature to bring discredit upon the armed forces.
         Award: Forfeiture of $ 532.00 per month for 2 month s , restriction for 45 days, reduction to E- 1 . Not appealed.
030729 :  MCB Camp Butler Okinawa, MCCS SARD, Report of Completion of Intensive Outpatient Treatment for Alcohol Dependence . Applicant successfully completed Intensive Outpatient portion of treatment foe alcohol dependence on 030729 with a guarded prognosis.
         Alcohol Diagnostic Impressions:
         Axis I: Alcohol Dependence. 303.90 with Physiological Dependence. Early Full Remission.
         Axis II: No diagnosis.
         Axis III: No diagnosis per Physical Examination.
         Axis IV: Routine Military Duties.
 Applicant provided with following continuing/after care treatment plan:
         Report to SACO immediately upon discharge from IOP treatment.
1.       Meet with the Command’s SACO on a bi-weekly basis for the continuing care period.
2.       Recommend participation in a twelve-step program 1-2 times a week during the 12 month continuing care period. Get a sponsor and contact regularly.
3.       Recommend abstain from alcohol for a period of 12 months.
4.       Report uncontrolled drinking episodes to unit SACO for evaluation.
5.       Report to SARD, Camp Foster on 030915 for a 45-day follow-up appointment.
6.       If at risk of a relapse, page the Duty Counselor.
7.       The patient (Applicant) was assessed not to have any learning barriers. The patient was educated about the diagnosis and rational for treatment and the patient (Applicant) expressed understanding.
Applicant provides sources of assistance and advised that failure to comply with the continuing care treatment program could result in administrative separation processing. The Applicant acknowledged receipt of the personal continuing care treatment plan.

030730 :  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct with a characterization of service as under other than honorable conditions. The factual basis for this recommendation was the established pattern of misconduct as evidenced by three non-judicial punishments . Applicant informed the least favorable character of service possible was under other than honorable conditions.

030805 :  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
030925:  Counseling: Advised of deficiencies in performance and conduct (successfully completed the Intensive Outpatient portion of treatment for Alcohol Dependence 303.90 on 29 July 2003 as identified in MCB Camp S.D. Butler SACO letter 5300 MCCS/SACO of 29 July 2003), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
031007:  4 th Marines Substance Abuse Control Officer, Letter of Treatment Completion. On 030611, the Applicant was evaluated and diagnosed as Alcohol Dependent, with p sychological d ependence by the Substance Abuse Rehabilitation Department (SARD) on Camp Foster. The Applicant was recommended for Intensive Outpatient (IOP) treatment. The Applicant successfully completed IOP treatment on 0300729. The Applicant met with the command SACO on 031007 and was asked why he (Applicant) had not complied with the Aftercare plan. The Applicant stated that he was “too busy and did not feel the need to go to AA meetings.” The Applicant stated that he had his drinking under control and that he had not had a drink since the completion of his treatment. The Head of the Alcohol Rehabilitation Department stated that although the Applicant had not complied with his Aftercare plan, he was not considered a treatment failure unless he returned to drinking or had another Alcohol Related Incident (ARI).

031009 :  An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct , that such misconduct warranted separation, an d recommended discharge with a characterization of under other than honorable conditions.

031010 :  Commanding Officer 4 th Marines , recommended to Commanding General, 3 rd Marine Division, that the Applicant be discharged by reason of misconduct due to a pattern of misconduct with a characterization of under other than honorable conditions . The factual basis for this recommendation was the Applicant’s established pattern of misconduct as evidenced by his three non-judicial punishments. Commanding Officer’s comments: “ Despite efforts to encourage Private V_ (Applicant) toward honorable, productive service, he has responded with further acts of misconduct. By his actions, he has demonstrated that he has absolutely no potential for further military service. ”

031028 :  SJA review determined the case sufficient in law and fact.

 031029 :  GCMCA, Commanding General , 3 rd Marine Division, directed th e Applicant's discharge with a service characterization of under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

031031:  Applicant found to be physically qualified for separation.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031105 by reason of misconduct due to a pattern of misconduct (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 Marine Corps can be attributed to his immaturity at the time of his discharge. While he may feel that this was 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.

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. 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 2 retention warnings and 3 nonjudicial punishment proceedings for multiple violations of Articles 90, 92, and 134 of the UCMJ. Violations of UCMJ Articles 90 and 92 are considered serious offenses for which a punitive discharge is authorized if convicted by special court-martial. In addition, the Applicant was not recommended for promotion on 3 occasions. 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.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.









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 two letters of character reference and one letter of recommendation from his current employer as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of sobriety, 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. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 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 90 (willfully disobeying lawful or der of a commissioned officer) and 92 (failur e to obey order or regulation).

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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