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USMC | DRB | 2007_Marine | MD0700452

Original file (MD0700452.rtf) Auto-classification: Denied

ex-, USMC
MD07-00452

Current Discharge and Applicant’s Request

Application Received: 20070221 Characterization Received:
Narrative Reason: ALCOHOL REHABILITATION FAILURE Authority: MARCORSEPMAN 6209

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Reenlistment opportunities
                           2. VA Benefits
                           3. Unfairly discharged
                           4. Service Record
                           5. Post Service

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall ALCOHOL REHABILITATION FAILURE

Date: 20 071025                            Location: Washington D.C.

Discussion

Issue s 1 & 2: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 3: ( ). The Applicant contends that he was unfairly discharged because, while he did consume alcohol once during his treatment, he believed he successfully completed his treatment. Additionally, the Applicant contends that the Administrative Board ruled not to separate the Applicant and that the Base General overruled the Administrative Board . The record clearly demonstrates that the Applicant was terminated in May of 1999 from an Intensive Outpatient Treatment for consuming alcohol on at least three occasions during the treatment and that the Applicant did not appear amenable to treatment. The assignment to the second Alcohol Rehabilitation Program in February of 2005 was characterized by the Applicant reporting that he relapsing on 20000326 and was unwilling to address this issue or consider a higher level of care. Competent medical authority judged the Applicant to be high risk for further relapse and that the final decision regarding member’s continued active duty rested with the commander. The Administrative Board provided their recommendation , not a ruling, to the Applicant’s Commander , and the Applicant’s Commander provided a recommendation to the Base General.

Issue 4: ( ). When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A general ( under 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 conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by the award of nine retention warnings, four nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized absence) and Article 92 (Disobeying a lawful order). Violation of UCMJ Article 92 is considered a serious offe nse for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate.

Issue 5: ( ). 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 did not provide any documentation o f post-service accomplishments other than his statement . The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.

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, Medical and Service Record Entries , Discharge Process and evidence submitted by the Applicant, t he Board found that

Summary of Service

Prior Service:
Inactive: USMCR (DEP)     19960731 - 19960903              Active:
Period of Service Under Review:
Date of Enlistment: 19960904               Years Contracted :        Date of Discharge: 20000824
Length of Service : 03 Yrs 11 Mths 21 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 55          MOS: 0844 Highest Rank:
Proficiency/Conduct marks (# of occasions):      4.1 ( 11 ) / 4.0 ( 11 ) Fitness reports :
Awards and Decorations ( per DD 214): NONE

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

19980210:        MARCORSEPMAN 6105 counseling for lost government equipment costing $189.75. Due to your own negligence in maintaining issued items of 782 equipment, these items have been lost. You have demonstrated poor judgment and discipline and are advised that such behavior will not be tolerated by this command.

19990304 :        NJP -- Viol UCMJ Art. 92 - Disobeyed a lawful order.
         Awarded - FOP ($ 275.00 ) for ( 1 month) , Restr for ( 14 days); Extra duties (# 14 days).

19990304:        MARCORSEPMAN 6105 counseling for the NJP you received on 19990304 for violation of Article 92. As a Marine you will follow all orders and regulations that you receive from higher ranking Marines or Sailors .

UNDATED:         MARCORSEPMAN 6105 counseling for your actions on the night of March 14 ^th , 1999. When given a lawful order to police up the dumpster area in front of Bldg 1656 you blatantly refused to do so. You did so in such a way as to show disrespect towards the Duty NC O .

19990408:        MARCORSEPMAN 6105 counseling for failure to successfully complete all of the assigned tasks relating to you EMI. You were given from 19990329 to 19990405 to have a correct military wall locker display ready for inspection. On 19990407 you were finally completed, and the results were extremely substandard.

19990507:        MARCORSEPMAN 6105 counseling for your being dismissed from outpatient alcohol therapy (level 3) for consuming alcohol on three separate occasions, failing to make 1 appointment, and failing to complete on time 5 homework assignments.

19990525:        Ltr from Director, SACC to Commanding Officer, 1 ^st BN 12 ^th Marines. Applicant terminated from Intensive Outpatient Treatment for consuming alcohol on at least three occasions during the treatment. Applicant does not appear amenable to treatment at this time and should be processed for administrative separation as a treatment failure . If retained, the Applicant should be held strictly accountable for his actions.

19990601:        MARCORSEPMAN 6105 counseling for your military appearance and disobeying a lawful order. On 19990526 and 19990527 applicant showed up to work with no shave. After the first incident on 19990526 SNM was told not to come to work without a fresh shave. On 19990527 SNM was part of a change of command and showed up with no shave the day after he was told to have a fresh shave. SNM’s utility uniform was not pressed and on 19990601 SNM showed up to work without a fresh haircut after a 96 and a payday weekend. SNM has already performed 16 hours of EMI for military appearance which he failed to complete and has been counseled numerous times concerning his appearance.

19990611 :        NJP -- Viol UCMJ Art. 86 - Absent from appointed place of duty 0730-0832 .
         Awarded - FOP ($ 260.00 ) for ( 7 days ); Restr for ( 14 days); Extra duties ( 14 days).

19990614:        MARCORSEPMAN 6105 counseling for your inability to be at your appointed place of duty on time.

19990810 :        NJP -- Viol UCMJ Art. 86 - Absent from appointed place of duty 0445-0750.
         Awarded - FOP ($ 537.00 ) for ( 2 months); RIR ( E-2 ); Restr for ( 45 days); Extra duties ( 45 days).

19990817:        MARCORSEPMAN 6105 counseling for being UA to formation which result in Battalion NJP.

19990908          NJP -- Viol UCMJ Art. 86 - Unauthorized absence (1 day) .
         Awarded - RIR ( E-1 ); Restr for ( 14 days); Extra duties ( 14 days). RIR suspended for 6 months.

20000502:        Medical Record: Reason for visit: Admission to Partial Hospital Treatment, Tri-service Addiction Recovery Facility on 20000228 and was discharged on 20000327.
         Diagnosis: Alcohol dependence. PFC Collins reported relapsing on 20000326 and was unwilling to address this issue or consider a higher level of care. Judged to be high risk for further relapse. Final decision regarding members continued active duty rests with the commander.

20000623:        Applicant does not rate VA treatment in conjunction with discharge.

20000627:        Applicant signed VA statement of understanding.

Discharge Process

Date Notified:   20000627
Basis for Discharge:
         DUE TO:
Least Favorable Characterization:
Commanding Officer’s Intended Recommendation:

Date Applicant Responded to Notification:                  20000628
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)                         ( NOT FOUND IN RECORD )
         Administrative Board

Administrative Board Date :       20000728
Findings, by preponderance of the evidence:     BY
         BY DUE TO .
Recommendation on Separation:     BY 12 MONTHS OR EAS
        BY
Recommendation on Characterization:              BY                                 BY

Commanding Officer Recommendation (date):        ( 20000627 )
SJA review (date):       ( 20000808 )
Separation Authority (date):     COMMANDING GENERAL, MARINE CORPS BASE HAWAII ( 20000810 )
Basis for discharge directed:
Characterization directed:
Date Applicant Discharged:       20000824

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:      Service and/or Medical Record:          Other Records:

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

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

Pertinent Regulation/Law

A. The Marine Corps Separation and Retirement Manual, (MCO P1600.19E), effective 18 August 1995 until 31 August 200 1, Paragraph 6209, ALCOHOL REHABILITATION FAILURE.

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.

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 to the Joint Service Review Activity , OUSD (P&R) PI-LP , The Pentagon , Washington, DC 20301-4000 . 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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USMC | DRB | 2007_Marine | MD0700452

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