Search Decisions

Decision Text

USMC | DRB | 2008_Marine | MD0801939
Original file (MD0801939.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080923
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     20011003 - 20020127     Active:  

Period of Service Under Review:
 Date of Enlistment: 20020128     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060120      H ighest Rank:
Length of Service : Y ea rs M on ths 23 D a ys
Education Level:        AFQT: 44
MOS: 6216
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      CG CoC LoA

Periods of UA : SCM: CC:

NJP:
- 2005031 2 : Article 92 (Failure to obey a lawful order by drinking and driving)
Awarded: Suspended:

SPCM: 1
- 20051201 : Article 111 (Drunken operation of a vehicle)
Sentence: CONF FOR 6 MONTHS (20051201-20051220 (20 days)), FOP, RIR TO E-1

Retention Warning Counseling:
- 20050314 : For alcohol-related incident, specifically DUI (.10 BAC). This is your fourth alcohol related incident in
this enlistment, and the first after intensive outpatient care.

- 20050315 : For misconduct, specifically my recent conviction at NJP for violation of Article 92 held on 20050312

- 20050429 : For alcohol rehabilitation failure. Specifically, on or about 20050317 you were reevaluated and found to
be a “Rehabilitation Treatment Failure” due to continued use of alcohol and alcohol related incident while
in a n aftercare status.

Types of Documents Submitted/reviewed

 Related to Military Service:

                  DD 214:        Service / Medical Record: Other Records:




Types of Documents Submitted/reviewed (cont)

 Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       

Related to Post-Service Period (cont):   
         Family/Personal Status:                   Community Service:                References:              
Additional Statements :
From Applicant ’s Family :        From Representat ion :   From Congress member :

Other Documentation : Death Certificate, Obituary

Pertinent Regulation/Law

A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective
1 September 2001 until Present.

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 and A rticle 111 .


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1. Upgrade discharge and change separation code; member r equired a more intensive alcohol abuse rehabilitation program.
2. Post-service conduct .

Decision

 Date: 20 0 9 0212            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
Discussion

 The former military service member’s parents obtained the services of a civilian counsel who is request ing a discharge upgrade to “Honorable” and a corresponding change to the separation code : T he member was involved in a fatal automobile accident before he could finish the effort of correct ing his military record himself . The Board sends its sincere condolences to the family and acknowledges this request i s an important issue to the member’s family and counsel . Although requests by families or civilian counsel to upgrade the characterization of a deceased service member are infrequent, they are not unique. The Board reviews these cases as if the Applicant w as still living and in an objective manner, but takes into consideration certain documentation may not be available or reasonable to obtain.
: ( Equity ) . 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 ’s family . The member’s record of service was marred by one NJP for violation of the U niform C ode of M ilitary J ustice (UCMJ) : Article 92 ( F ailure to obey a lawful order by drinking and driving) and one SPCM for violation of Article 111 ( D runken operation of a vehicle). These are considered serious offenses which could have resulted in a punitive discharge if adjudicated and awarded as part of a sentence by a special or general court martial. The command did not award a punitive discharge at the special court martial, but opted instead for an administrative discharge.

The service member had a history of alcohol incidents , including a pre - service admission to being cited for underage drinking. A review of the member’s service record indicated he had the following six alcohol related incidents: (1) June 2006, Okinawa – no legal or administrative action taken; (2) May 2004, MCAS Cherry Point , Havelock bar – no legal or administrative action taken; (3) August 2004, MCAS Cherry Point , while in town – counseled; (4) November 2004, MCAS Cherry Point, convulsions in barracks – counseled ; (5) March 2005, MCAS Cherry Point, arrested for DUI in Carteret County – NJP; and (6) Octo ber 2005, MCAS Cherry Point, drunken operation of a vehicle – Special Court Martial. After the member’s fourth alcohol-related incident, he was interviewed by a certified substance abuse counselor and diagnosed by a medical doctor of alcohol abuse on 18 November 2004 .
(Note: T he Applicant was not diagnosed as alcohol dependent which would have qualified him for Level III treatment, a residential rehabilitation program. Level III is designed for those members who have been formally evaluated and diagnosed as alcohol dependent and who require rehabilitation on a full-time, live-in basis. They must, in the opinion of their commanding officer, show potential for continued naval service. )

The member was subsequently enrolled into a Level II Intensive Outpatient & Early Intervention Program and completed the program on 20 January 2005 , with scheduled follow-on programmed aftercare. Unfortunately, the Applicant failed the program aftercare when he was again involved in an alcohol-related incident ( referenced above as incident 5 ) . The Applicant was reevaluated on 15 March 2005 by a certified counselor and on 17 March 2005 a medical doctor determined the Applicant was “a Rehabilitation Treatment Failure” due to the continued use of alcohol and continued alcohol related incidents while in an aftercare status.” For the edification of counsel and family, a ny Marine who fails to successfully complete treatment is subject to administrative separation. Following his second alcohol abuse evaluation, the Applicant was involved in another alcohol incident (referenced above as incident 6) and subsequently given a SPCM. The command “lost all trust and confidence” in the Applicant and correctly processed him for involuntary administrative separation for his pattern of misconduct due to lack of potential for continued naval service.


While the family may feel the member required a greater level alcohol abuse treatment program, the member was provided adequate treatment for the level of abuse he was diagnosed with at the time of his misconduct. During treatment members are provided with recommendation s to assist them from returning to alcohol in times of boredom or crisis. Additionally, members are assigned an aftercare program to help assist them in their recovery. A ll members of the program must at some time assume responsibility for their actions and have the internal desire to remove alcohol from their life. Unfortunately, not all graduates of the rehabilitation program succeed in this endeavor. In these cases commanders use their best judgment for the greater good of the military service and their command’s mission and safety. In this particular case it was determined the best course of action was to administratively process the member for discharge without further attempts at rehabilitation. It was noted in the member’s discharge medical evaluation the doctor suggest ed follow - on counseling for alcohol dependency as a result of the member’s increased addi ction to alcohol.

The Board determined the awarded discharge characterization and separation code w ere appropriate considering the frequency and nature of the offenses committed; an upgrade and change would be inappropriate.
Issue 2: ( ) . The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides 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. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the member’s
performance and conduct during the period of service under review, is considered during Board reviews. Documentation to help support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage
and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attending or completion of higher education (official transcripts) and documentation
of alcohol non-dependency and a drug-free lifestyle. Counsel , and t he member ’s family , is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

The Board applauds the member for taking responsibility for his actions and his initial efforts to remove the blemish against his service record. Acknowledging responsibility and maintaining a steady job are positive first steps . However, before the Appl i cant could take even greater steps forward he met with a fatal accident. Unfortunately , t o warrant an upgrade, the member ’s post-service efforts need ed to be more complete to support an upgrade. Counsel was only able to provid e character references to document his client’s post-service efforts at this time . The Board notes that more than half of the references were written before the member’s fatal car accident indicating to the Board he was working to document post-service improvement s .
While there is no way of knowing how complete his post-service efforts would have become, at the time of his death there was not sufficient documentation of such efforts to warrant a discharge upgrade.

The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved . The Board acknowledges the limitations on both counsel and family at this time in providing post service documentation however, based on the limited post-service documentation provided an upgrade would be inappropriate.
Counsel and t he member’s family remain eligible for a personal appearance hearing on behalf of the member , provided an application is received at the NDRB within 15 years from the date of discharge. Should additional evidence or post service documentation become available the family may wish to apply for a personal appearance on behalf of their son . There are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members or their families, in their efforts to obtain a discharge upgrade.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record s , Discharge Process and evidence submitted by the Applicant ’s family , the Board found the discharge was proper and equitable.


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 or is referred to a court-martial fo r 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 other medical related reasons. ” 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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

Similar Decisions

  • USMC | DRB | 2002_Marine | MD02-00565

    Original file (MD02-00565.rtf) Auto-classification: Denied

    MD02-00565 Applicant’s Request The application for discharge review, received 020319, requested that the reason for the discharge be changed to "end of contract." P_, Senior Defense Counsel, letter of rebuttal dtd 21 Oct 92North Carolina Uniform Citation PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: None Inactive: USMCR(J) 880518 - 881121 COG Period of Service Under Review :Date of Enlistment: 881122 Date of Discharge: 921104 Length of...

  • USMC | DRB | 2008_Marine | MD0800141

    Original file (MD0800141.rtf) Auto-classification: Denied

    The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service conduct mitigates the reason for the characterization of discharge. The documentation provided by the Applicant was not sufficient to mitigate the misconduct that resulted in the characterization of discharge and the Board determined an upgrade would be inappropriate.After a...

  • NAVY | DRB | 2005_Navy | ND0500078

    Original file (ND0500078.rtf) Auto-classification: Denied

    910628: Applicant notified of intended recommendation for discharge with type warranted by service record under honorable conditions (general) by reason of alcohol abuse rehabilitation failure as evidenced by refusal to participate in required Alcohol Rehabilitation After Care Program.910628: Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to...

  • USMC | DRB | 2006_Marine | MD0600558

    Original file (MD0600558.rtf) Auto-classification: Denied

    Not appealed.970709: Forfeiture of pay and reduction in pay grade awarded at NJP vacated due to continued misconduct.970709: NJP for violation of UCMJ, Article 86: UA from 1630, 970522 to 0700, 970528.Violation of UCMJ, Article 107: Dismissed. 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...

  • NAVY | DRB | 2010_Navy | ND1001176

    Original file (ND1001176.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues Decisional issues: The Applicant contends that his discharge action for Alcohol Rehabilitation Failure was unjust in that he was not provided treatment or a continuum of proper care until after his second incident for which he was quickly discharged. On 06 July 2004, the Separation Authority determined that separation was warranted pursuant to Article 1910-152 and directed that...

  • USMC | DRB | 2005_Marine | MD0500481

    Original file (MD0500481.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.010823: Applicant signed Substance Abuse Counseling Center statement of understanding of treatment for substance abuse after his discharge at a Veterans Administration Medical Center.011206: NJP for violation of UCMJ, Article 92 (2...

  • NAVY | DRB | 2010_Navy | ND1001115

    Original file (ND1001115.rtf) Auto-classification: Denied

    Given the statement of the arresting officer, the SARP determined that the incident did involve alcohol, was alcohol related, and did violate the terms of the Applicant’s aftercare program, OPNAVINST 5350.4D, and Article 1910-152 of the MILPERSMAN.Based on this alcohol-related incident, the command and the medical officers determined the Applicant to be an Alcohol Rehabilitation Treatment Failure; as such, processing for administrative separation was mandatory.9, the Applicant was notified...

  • NAVY | DRB | 2010_Navy | ND1001171

    Original file (ND1001171.rtf) Auto-classification: Denied

    Based on a detailed review of the Applicant’s discharge package and supporting documentation, coupled with a review of the medical records and alcohol treatment program documentation, the NDRB determined that the Applicant was an Alcohol Rehabilitation Treatment program failure, that processing for separation was mandatory, and that the discharge was proper as issued. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance...

  • USMC | DRB | 2015_Marine | MD1500601

    Original file (MD1500601.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 15April 2005. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • NAVY | DRB | 2009_Navy | ND0902273

    Original file (ND0902273.rtf) Auto-classification: Denied

    Per the Applicant’s own statement on his DD Form 293, he stated, “When I came back from SARP in March of 05, I did make some of the aftercare aboard the ship.” The NDRB determined that the Applicant was an alcohol rehabilitation failure and his discharge was proper and warranted. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded...