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USMC | DRB | 2010_Marine | MD1000545
Original file (MD1000545.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091208
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)       20030113 - 20030309     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20030310     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050225      H ighest Rank:
Length of Service : Y ea rs M on ths 16 D a ys
Education Level:        AFQT: 56
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA / CONF :

NJP:

- 20040713 :      Article 112 , Drunk on duty as a BSG student in morning formation o n or about 0630 20040603
         Awarded: Suspended:

SCM:     SPCM:    CC:     

Retention Warning Counseling:

- 200 3 0 6 1 1 :      For your physical condition not being a disability (right ankle l ateral m al leolus ) and any resultant or aggravated condition that interferes with the effective performance of your duties.
- 20040713 :      For NJP held on 20040713 for violation of Article 112 of the UCMJ.
Pertinent Regulation/Law

 A . The Marine Corps Separation and Retirement Manual, (MCO P1600.19F), effective 1 September 2001 until Present, 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 .



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

Applicant’s Issues

1 .       The Applicant wants his reentry code changed so he can reenlist in the military .
2 .       The Applicant contends he d id not receive dental care prior to being discharge d .
3 .       The Applicant contends he was not provided proper medical care for injuries sustained while on active duty.
4 .       The Applicant contends the information in Blocks 8b, 12b, 17, and 26 on his DD 214 is either incorrect or false.
5.       The Applicant contends his narrative reason for separation is incorrect.


Decision
Date: 20 1 1 0217            Location: Washington D.C .         R epresentation :

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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings and non-judicial punishment for violation o f the Uniform Code of Military Justice (UCMJ): Article 112 ( D runk on d uty). Based on his failure to complete alcohol rehabilitation, his command administratively processed him for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether he waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review . However, the Separation C ode , HPD1 , ( B lock 26 o n DD 214 ) does indicate the Applicant was discharged for a lcohol r ehabilitation f ailure and that he waived his right to an administrative board.

: (Non-decisional) The Applicant wants his Reentry (RE) code changed so he can reenlist in the military. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, it is not authorized to change a n RE code. 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. Only the Board for Correction of Naval Records (BCNR) can make changes to RE codes.
: ( Non-decisional) The Applicant contends, contrary to the information in Block 17 on his DD 214, that he did not receive necessary dental care prior to being discharged . T his issue does not serve to provide a foundation upon which the NDRB can grant relief. Concerns regarding the administrative accuracy of information on the DD 214 should be addressed to BCNR . T he U.S. Department of Veterans Affairs (VA) determine s eligibility for post-service dental benefits , not the NDRB.

: ( Non-decisional) The A pplicant contends he did not receive proper medical treatment for injuries sustained while on active duty. T his issue does not serve to provide a foundation upon which the NDRB can grant relief. There is nothing in the Applicant’s service or medical records to substantiate his allegation.

Issue 4: (Non-decisional) The A pplicant contends the information in Blocks 8b, 12b, 17 , and 26 on his DD 214 is either incorrect or false. T his issue does not serve to provide a foundation upon which the NDRB can grant relief. Concerns regarding the administrative accuracy of information on the DD 214 should be addressed to the BCNR.

Issue 5: (Decisional) ( ) . The Applicant contends the N arrative R eason for S eparation (Block 28 on DD 214) , Alcohol Rehabilitation Failure, is incorrect or false . Documentation found in the Applicant’s medical record indicates that on 30 October 2004, he was diagnosed as alcohol dependent by a Licen s ed Professional Provider. On 27 December 2004, he was admitted into a L evel III Substance Abuse Rehabilitation Program at Naval Medical Center, Portsmouth, Virginia. T he Applicant was discharged from the program on 29 December 2004 as a

“ REHABILITAT I ON FAILURE WITH A POOR PROGNOSIS FOR FURTHER RECOVERY” because he failed to compl y with program rules and regulations. Specifically, he left the program against medical a dvice , which constitutes failure. Pursuant to Marine Corps regulations, a Marine referred to a program of rehabilitation for personal alcohol abuse and/or dependency may be separated from the Marine Corps for a lcohol r ehabilitation f ailure through his inability or refusal to participate in, cooperate in, or successfully complet e such a program and there is a lack of potential for continued naval service. Based on documentation found in the Applicant’s medical records, t he NDRB determined the Applicant met the criteria for separation as an “Alcohol Rehabilitation Failure” and was processed for administrative separation. The NDRB could discern no impropriety or inequity in the Applicant’s discharge . Relief denied.

Summary: A fter a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Presumption of regularity of governmental affairs was also applied by the Board in this case due to the absence of a discharge package from the service record. Therefore, the characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) 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 discharge. The Applicant is directed to the Addendum for additional information.




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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