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USMC | DRB | 2006_Marine | MD0601226
Original file (MD0601226.rtf) Auto-classification: Denied

ex-, USMC
MD06-01226

 Current Discharge and Applicant’s Request :

Application Received:                               2 00 60921
         Characterization of Service:             
         Basis for Discharge :                       CONDITION NOT A DISABILITY
         Discharge Authority :                       MARCORSEPMAN 6203.2
         Duty Assignment/ Command at Discharge:    SOI, CAMP LEJEUNE, NC

Applicant’s Request:
          Characterization change to:              
         Narrative Reason change to:              
         Review Requested:                         
         Representation:                                    
         Issues (as summarized by NDRB) :            1. Equity – characterization too harsh for 13 year career
                                                      2. Equity – Post service
                                                                       

Decision:

 Date of Decision:                                            20 070712
Location of Board:                                  Washington D.C.
Complete Service Record:                                   
Complete Medical Record:                          
Complete Discharge Package:                       

Regarding propriety, the Board found the discharge:     
Regarding equity, the Board found the discharge:        

By a vote of the Characterization shall .     
By a vote of the Basis for Discharge shall due to .


Summary of Service:

Prior Service:
 Inactive: USMCR (DEP)                               19910118 - 19910303
Active:                                              19910304 - 19950303
Inactive: USMCR                             19950304 - 19970319 HON (IRR)
Active: USMC                                         19970320 - 20010214 HON

Period of Service Under Review:
 Date of Enlistment:                                 20010215
Years Contracted :                                   ; Extension:
Date of Discharge:                                  20040122
Length of Service
          Active:                                      2 Yrs 11 Mths 8 D ys (does not exclude lost time)
         Inactive:                                            0 Yrs 0 Mths 0 D ys
         Time Lost During This Period:            
        
Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 55
MOS:                                                  0341 /0351
Highest Rank:                                       
Proficiency/Conduct marks (# of occasions):               4. 7 (*) / 4. 5 ( * )
Fitness reports available for review?            

Awards and Decorations (as listed on the DD Form 214): COMBAT ACTION RIBBON, NATIONAL DEFENSE SERVICE MEDAL (W/1-STAR), MARINE CORPS GOOD CONDUCT MEDAL (W/2-STARS), SEA SERVICE DEPLOYMENT RIBBON (W/4-STARS), ARMED FORCES EXPEDITIONARY MEDAL, JOINT MERITORIOUS UNIT AWARD, LETTER OF APPRECIATION, RIFLE MARKSMAN MARKSMANSHIP BADGE, PISTOL SHARPSHOOTER MARKSMANSHIP BADGE


* NOT AVAILABLE


Service Record Entries Related to Characterization of Service or Basis for Discharge

20020108:        Counseling: Advised of deficiencies in performance and conduct (Violations of Article 86, 92 of the UCMJ. Failed to appear to appointed place of duty, the S-3 office of Infantry Training Battalion, School of Infantry, Marine Corps Base, Camp Lejeune, at 0630, 20010830 and 20010914. Such conduct is not indicative of noncommissioned officers of y o ur gra de and experience, and will not be tolerated. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
20020108:        Counseling: Advised of deficiencies in performance and conduct (Poor leadership. Your actions demonstrate that you are in a state of poor physical fitness. You are presently unable to remain with and supervise students place under your charge during physical training formations runs. Such conduct is not indicative of a senior Noncommissioned Officer, and will not be tolerated. Unofficial counseling has been provided to assist you in correcting identified weaknesses and specific actions to correct them..), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 20020321 :        Counseling: Advised of deficiencies in performance and conduct ( On your unsatisfactory performance of duty by not maintaining the Marine Corps weight standards. As a result of your inability to meet established goals while assigned to the Weight Control Program, you were extended for a period of 90 days as of 20020125. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
20020321:        Counseling: Advised of deficiencies in performance and conduct (Violation of Article 92 of the UCMJ. Specifically, disobedience of a lawful order to be at the SNCO Club, Camp Lejeune, NC at 1300, 20020313 to take part in a “Quality of Life” survey conducted by the DoD.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
2003102 1 :        Summary Court-Martial
         Charge I : V iolation of the UCMJ, Article 92:
         Specification: . On or about 0457, 20031007, fail to obey lawful order by wrongfully consuming alcoholic beverages prior to assuming duty.
         Charge II: Violation of the UCMJ, Article 134:
          Specification: On or about 1342, 20031016, as a result of wrongful previous overindulgence in intoxicating liquor, was incapacitated for the proper performance of duties.
          Finding: To Charge and the specification thereunder, guilty.
          Sentence: Forfeiture of $1215.00, restriction for 60 days, reduction to E-4.
         CA action 20031104: Sentence approved and ordered executed.

 20031112:        Counseling: Advised of deficiencies in performance and conduct (Specifically your demonstrated lack of sound judgment, as indicated by your recent alcohol related incident and your failure to follow orders and regulation; specifically SOI Order 1700.2D this type of behavior is not in keeping with the conduct expected for Marines, and will not be tolerated), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.



Medical Record Entries Related to Characterization of Service or Basis for Discharge
20031008:        Naval Hospital Camp Lejeune, NC: Applicant present for ETOH evaluation. Applicant seen yesterday for competency for duty - found to have a BAC 161 - no physical findings of intoxication. Applicant has history of ETOH treatment x3 - 1 inpatient, 2 outpatient, last in Dec 2002 (outpatient). Denies alcohol since 2100 on 6 Oct.
         Assessment:
         1. Alcohol abuse by history.
         2. Early ETOH withdrawal.
         Plan: Send for stabilization - will probably be admitted to manage withdrawal.

20031010:        Naval Hospital Camp Lejeune, NC: Applicant present for follow up.
         Assessment: ETOH withdrawal - resolving.
         Plan:
         No drinking this weekend.
         Continue Ativan prn.
         Follow up Tuesday as previously ordered.
         Follow up prn this weekend at Devil Dog.

20031016:        Naval Hospital Camp Lejeune, NC: Applicant present for competency for duty by his command. Applicant reports having his last alcohol beverage at 2130 last nigh t where he had 5-6 mixed drinks.
         Assessment: Not competent for duty.
         Plan: Applicant released to GySgt.
         Applicant taken to Naval Hospital for blood ETOH level.

20031021:        Substance Abuse Counseling Center: Applicant screened as a result of a command referral due to an ARI (had alcohol on his breath while on duty) that occurred during the week of 7-10 Oct. A review of our records indicate that the applicant was previously screened on 20030117 due to an ARI. Applicant was assigned to the Intensive Outpatient Treatment Program, which he completed on 20030513. It has been determined that applicant is not amenable for treatment and that no further progress is likely at this time.
         Diagnosis: Alcohol dependency as previously diagnosed.
20031113:        Commanding Officer, Naval Hospital, Camp Lejeune, NC: Applicant diagnosed with alcohol dependency since December 1992. Applicant has been treated for same through one inpatient and two outpatient programs with the most recent treatment being in December 2002. Applicant referred for competency for duty evaluation on 20031016 and was found not competent for duty. Applicant is recommended for administrative separation for alcohol dependency.


Elements of Discharge: [ IN VOLUNTARY]

Date Notified:                                       20031114
Basis for Discharge:              CONDITION NOT A DISABILITY
Least Favorable Characterization:                         
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                 20031125
Rights Elected at Notification:
          Consult with Counsel                      
         Obtain Copies of Documents                
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        ( 20031114 )
 SJA review (date):                                 
Separation Authority (date):     COMMANDING OFFICER, SCHOOL OF INFANTRY ( 20031229 )
          Basis for discharge directed:             due to a physical condition                                                  not a disability
         Characterization directed:                        
Date Applicant Discharged:                         20040122


Additional Documents Submitted by Applicant and Considered By Board
Total Number of Pages:                               6

Related to Period of Service Under Review:
          From Service and/or Medical Record:               Other Records:  

Related to Other Period(s) of Service:
          From Service and/or Medical Record:               Other Records:  

Related to Post-Service Period:
          Employment:                                          Finances:       
         Health/Medical Records:                             Substance Abuse:        
         Family/Personal Status:                             Education:      
        Community Service Efforts:                         References:     
         Criminal Records:                         

Other:
          Additional Statements From Applicant:             From Representative:    
        Other Documentation (Describe)                 

Discussion
Issues (as summarized by NDRB):          

1. Equity – characterization too harsh for 13 year career
2. Equity – Post service
Issue 1 (Equity): The Applicant requests upgrade of his characterization of discharge because it is too harsh given his 13 years of service. When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characteriz e 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 failed competency for duty exams, 2 counseling entries, 4 retention warnings , and one summary court-martial for violations of UCMJ Articles 92 (failure to obey an order) a nd 134 (incapacitat ion for the performance of duty) . 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 to honorable . Relief is not warranted.

Issue 2 (Equity): The Applicant mentioned his post service circumstances and good conduct in support of his request for upgrade. 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 service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was not sufficient to mitigate the conduct that precipitated the discharge. Relief denied.
In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Pertinent Regulation/Law

 A. Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 01 September 2001 and Present), paragraph 6203, CONVENIENCE OF THE GOVERNMENT
B. 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 V, Para 502, Propriety and Para 503, Equity .

C. 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 (disobey lawful order) .

ADDENDUM: Information for the Applicant
Complaint Procedures : 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the 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. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service 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.
Employmen t / Educational Opportunities : 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 of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. 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.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD . ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: 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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