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USMC | DRB | 2009_Marine | MD0900729
Original file (MD0900729.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090206
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) :     Active:  

Period of Service Under Review:
 Date of Enlistment: 19990608     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20030602      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 28 D a y ( s )
Education Level:        AFQT: 33
MOS: 3051
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of CONF : 20030110 - 20030204 (25 days)

NJP:
- 20021219 : A rticle 134 (Incapacitated for duty ), 2 specifications
                  Awarded: Suspended:

SCM:
- 20030211 : Article 91 (Insubordinate conduct towards an NCO)
Article 92 (Failure to obey an order or regulation)
 Article 134 (Breaking restriction)
 Article 134 (Disorderly Conduct)
 Article 134 (Drunk and disorderly)
Sentence:

SPCM: CC:

Retention Warning Counseling:
- 20010919 : For unauthorized absence from appointed place of duty.
- 20020409: For UNSAT performance with the M16A2.
- 20020605: For alcohol related incident / assault on NCO.
 - 20021031 : For being drunk, incapacitated for duty (BAC of .175).
- 20030310: For being drunk and disorderly (BAC of .234).
 - 20030317: For violation of the liberty policy.

Types of Documents Submitted/reviewed

 Related to Military Service:
DD 214:      Service / Medical Record: Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
Additional Statements :
From Applicant:         From Representat ion :   From Congress member :

Other Documentation :

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 s of the UCMJ: Article 91 (Insubordinate conduct towards an NC O) ; Article 92 (Failure to obey an order or regulation) ; Article 134 (Breaking restriction) ; Article 134 (Disorderly Conduct) ; Article 134 (Drunk and disorderly) and Article 134 (Incapacitated for duty).



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

Applicant’s Issues

 1. Service benefits .
2. Mitigating circumstances ( m ental h ealth i ssues) .
3. Unfair discharge .

Decision


 Date: 20 0 9 0507            Location: Washington D.C .         R epresentation :

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

 : 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 , specifically the paragraph concerning , regarding .

: ( ) . The Applicant contends he should have been discharged due to his medical condition instead of being discharged by reason of Pattern of Misconduct. 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. The Applicant’s record of service was marred by six retention warnings, one NJP and a S CM for violations of the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct towards an NCO) ; Article 92 (Failure to obey an order or regulation) ; several Article 134 violations (Breaking restriction , d isorderly c onduct , d runk and disorderly , and i ncapacitated for duty). These are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial. The command did not refer the Applicant for a court martial but opted instead for an administrative discharge based on an established pattern of misconduct.

The Board reviewed the case carefully and noticed several coincidences as they relate to the Applicants case. The Applicant had an alcohol related incident prior to his Unit Deployment to Okinawa. Within the first few months of arriving in Okinawa, the Applicant had another alcohol related incident on 19 September 2002 and was referred and seen by the Substance Abuse Rehabilitation Department (SARD) for evaluation on 8 October 2002 . The Applicant was sent to an Alcohol Impact class, which he completed on 18 October 2003. On 31 October 2002, the Applicant was given a retention warning and then was the subject of an NJP on 19 December 2002 for the two alcohol incidents that occurred on 19 September and 27 October 2002. While in a restricted status the applicant was charged for vio lations of the UCMJ for Article 91, Article 92 and Article 134 (2 specifications) on 24 December 2002. That same day, the Applicant was admitted to the Okinawa Naval Hospital for suicidal ideations. The Applicant was discharged on 31 December 2002 with a diagnosis of adjustment disorder with depressed mood and alcohol abuse. The Applicant was discharged to his command with a recommendation for administrative discharge. It also noted the Applicant does not suffer from a mental illness which renders him incapable of knowing the wrongfulness of his actions. He was fully accountable for his behavior.

 Two days after being discharged from the hospital, the Applicant, while in a Liberty Risk Category “C”, which prohibits the consumption of alcohol, became drunk and disorderly with a Blood Alcohol Concentration (BAC) of .234. On 4 January 2003, the Applicant was again admitted to the Okinawa Naval Hospital for suicidal ideations and again diagnosed with adjustment disorder with depressed mood and alcohol abuse. Upon discharge, the Medical Staff recommended an Expedi tious Administrative Separation, but also stated once more the Applicant does not suffer from a mental illness which renders him incapable of knowing the wrongfulness of his actions. He was accountable for his behavior. He was discharged from the hospital on 10 Januar y 2003 and was sent to the brig, pending his charges at a court-marti al for the charges that occurred on 24 December 2002 and 2 January

2003. The Applicant was subject to a S CM on 11 February 2002 and was reduced in r ank. Additionally, he refused treatment for alcohol abuse on 18 March 2003. A Marine may be separated for refusing medical treatment and that refusal interferes with duty. The commander must determine if the refusal is “reasonable” or “unreasonable” and warrants separation based upon the situation.

The Board understands the Applicant was recommended by the medical authorities to be administratively separated from the Marine Corps based on his mental condition on two occasions . However, when it comes to Medical Conditions versus Misconduct , a ppropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons , including medical . The Board determined the applicant sought medical help to seek refuge from the disciplinary action that was facing him. The Applicant claims he had family problems at home with his Mom and Wife, but the Applicant provides no documented information he informed his chain of command of family problems and did not receive the assistance, leave, or help he asked for. Additionally, the Applicant makes no mention of, nor provides documented proof, if he attempted to use any one of the numerous family support programs sponsored by or for military service members. These programs and services, such as Family Advocacy, Navy – Marine Corps Relief Society, Red Cross, the Chaplain, or even Navy medical health personnel if needed, all provide services to members of the military, regardless of grade, in times of need. The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.
: ( ) . The Applicant contends his discharge was unfair due to his record of service and the circumstances surrounding his situation. Again, 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. The Board determined based on the misconduct of record, the Applicant was afforded every opportunity to succeed but chose to continue down the wrong path. Although, he could have been medically discharged due to an adjustment disorder, the command was well within their rights to discharge the Applicant due to his misconduct. The Board determined an upgrade would be inappropriate.

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 Applicant’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 a drug free lifestyle. The Applicant 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.

Besides the Applicants statement on the DD Form 293, he provided current medical documentation, service-related documentation and representative correspondence as evidence on his behalf. However, to warrant an upgrade the Applicant’s post service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an 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, and based on the limited post service documentation provided an upgrade would be inappropriate.
After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found


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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB ’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 NDRB 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.

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 NDRB 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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