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USMC | DRB | 2009_Marine | MD0902479
Original file (MD0902479.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090909
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)       19990720 - 19990815     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19990816     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20020123      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 08 D a y ( s )
Education Level:        AFQT: 93
MOS: 0621
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA /CONF : 20010221-20010320 (27 days)

NJP:

- 20010606 :       Article 86 (Failed to go to appointed place of duty, Tripler Army Medical Center 1300, 20010427)
         Article 134 (Incapacitated for duty over indulgence of intoxicating liquor 20010427)
         Awarded : Susp ended: Vacated 20010614

- 20011220 :       Article 134 (Drunk and disorderly conduct, apprehended by Military Police)
         Awarded : Susp ended:

SCM:

- 20010221 :       Art icle (Disrespectful), 3 specifications
         Article 91 (Disobeyed lawful orders), 2 specifications
         Article 134 (Drunk and disorderly) , 2 specifications
         Sentence :

SPCM:

CC:

Retention Warning Counseling :

- 20000414 :       For violation of article 86, specifically, failure to report to your appointed place of duty, and article 92, specifically, failure to obey Sco1O P1500.5, in that sleeping in class is prohibited.

- 20010118 :       For being found unfit for duty on 200 0 0922, BAC of .14 %.

- 20010118 :       For being found unfit for duty on 20001222, BAC of .16%.

- 20010228 :       For recent Summary Court Martial Conviction .

- 20010501 :       For being dropped from Tri-Service Addiction Recovery Facility (TRISA R F) at the Tripler Army Medical Center (TAMC) where you were referred by a medical officer as alcohol dependent.

- 20011207 :       For being recommended for administrative separation from the Marine Corps, specifically, regarding incident at 0055 20011124 at BLDG # 1637, MCBH, Kaneohe Bay, HI, you were cited and apprehended by MPs for drunk and disorderly conduct at the main gate.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ 27 DAYS (20010221 - 20010320) ”
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected, as appropriate.

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. Paragraph 6209, ALCOHOL REHABILITATION FAILURE of the Marine Corps Separation and Retirement Manual, (MCO P1600.19F), effective 1 September 2001 until Present.

C . 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 .




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

APPLICANT’S ISSUES

 1 .       Decisional issues : (1) The Applicant contends that his Under Other Than Honorable discharge is too harsh for his misconduct of record and that he was treated unfairly by his chain of command and thereby warrants relief from the NDRB with a re-characterization of his service period to General, Under Honorable Conditions. (2) Additionally, Applicant contends that his alcohol dependency contributed to and mitigated his misconduct of record.

DECISION

 Date : 20 10 0 909            Location: Washington D.C .         R epresentation : aMERICAN lEGION

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
DISCUSSION

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identified two decisional issues to the Board. Th e Board complete d a thorough review of the circumstances that l ed to the d ischarge , and the discharge process , to ensure the discharge met the pertinent standards of both equity and propriety. The Applicant’s record of service included six 6105 retention - in - service counseling warnings and Non -j udicial Punishments for violations o f the Uniform Code of Military Justice (UCMJ): specifically, Article 86 ( Unauthorized Absence – failure to go to appointed place of duty ) and Article 134 ( Drunkenness – incapacitated for duty due to alcohol and Drunk and Disorderly – apprehended by military police ) . Additionally, the Applicant was subject to a Summary Court - Martial (SCM) for violation of the UCMJ: Article 91 ( Insubordinate Conduct Toward Warrant, Noncommissioned, P etty O fficer s – Disrespect (3 specifications ) and Disobedience of a Lawful Order (2 specifications ) . Based on the offenses committed by the Applicant, his command administratively processed him for separation under Misconduct – Pattern of Misconduct . When notified of a dministrative separation processing using the notification procedure, the Applicant waived rights to consult with a qualified counsel, to submit a written statement, or to request an administrative board hearing .

The Applicant provided no documentation for consideration by the board beyond his personal statement of issues.

: (Decisional) ( ) . The Applicant contends that his Under Other Than Honorable discharge is too harsh for his misconduct of record and that he was treated unfairly by his chain of command , thereby warranting relief from the NDRB with a re-characterization of his service period to General, Under Honorable Conditions. Additionally, the Applicant contends that his alcohol dependency contributed to and mitigated his misconduct of record.

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 is marred by six retention warnings , two NJP s for violation s of the Uniform Code of Military Justice (Articles 86 and 134 (x2) ) and a S CM for violation of the Uniform Code of Military Justice (Articles 91(x5) and 134 (x2)). Violation of Article 91 is a serious offense that 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 unit c ommander may have pursue d confinement and punitive discharge through a special or general court-martial if he determined the circumstances warranted it. In this specific case, t he command did not refer the Applicant for a court - martial but opted instead to pursue a more lenient administrative discharge for Misconduct – Pattern of Misconduct . Based on a review of the Applicant’s s ervice and medical record, there is no question that alcohol contributed to , or exacerbated , his propensity for misconduct. The C ommand offered the Applicant numerous opportunities to take actions to correct his conduct and complete his service honorably. These efforts include d the opportunity for weekly alcohol counseling and two separate assignments to treatment at a 30-day i n patient alcohol rehabilitation facility. Each time the Applicant was counseled formally , he indicated a desire to be retained and stated that he would correct his noted deficiencies and that he was committed to overcom ing his shortfalls. The command went well beyond expectation t o assist the Applicant, only to be refuted each time.

Paragraph 6209 of t he Marine Corps Separation and Retirement Manual (MCO P1 9 00.1 6 F) provides that a Marine who has been referred to a program of rehabilitation for personal alcohol abuse and/or dependency may be separated for failure through inability or refusal to participate in, cooperate in, or successfully complete such a program if the following circumstances apply:
a. There is a lack of potential for continued naval service; or
b. Long - term rehabilitation is determined necessary and the Marine is transferred to a civilian medical facility for rehabilitation.
 The command believed there was a potential for continued naval service and the m edi c al t reatment facilities did not indicate a need for long-term rehabilitation beyond that which could not be completed while in the service. Given these factors, the Command undertook extensive effort s to enable the Applicant to complete his contractual service obligation . However, this paragraph of the Marine Corps Separation and Retirement Manual does not preclude separation under other provisions of th e Manual . In the Applicant’s case, it was a continued, willful, pattern of misconduct despite numerous opportunities afforded him to take corrective action and complete his service honorably.

The Applicant contends his alcohol dependency mitigates his misconduct. While he may feel this was the underlying cause of his misconduct, the record clearly reflects a pattern of willful misconduct that demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct , or that he should not be held accountable for his actions. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member’s conduct or performances of duty outweigh the positive aspects of the member’s military record. The Applicant’s record of service clearly established significant negative aspects of conduct. As such, t he Board determined the characterization of service received, Under Other Than Honorable Conditions, was an appropriate characterization of the Applicant’s time in service when coupled with the UCMJ violations involved . A n upgrade would be inappropriate.
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 characterization of service shall and the narrative reason for separation shall remain .
The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct .


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Disable d American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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.
Employment/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 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.
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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

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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