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USMC | DRB | 2010_Marine | MD1000839
Original file (MD1000839.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100217
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: CONVENIENCE OF GOVERNMENT

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19960628 - 19960721     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19960722     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19981106      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 14 D a y ( s )
Education Level:        AFQT: 70
MOS: 2651
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle LoA

Periods of UA / CONF :

NJP:
- 19980408 :       Article (Failure to obey order, possessing hard liquor in barracks room), 19980404
         Awarded : Oral reprimand CCU (4 days) (to E-2) Susp ended: (6 months)
         *Reduced to E-2 on 19980710 due to alcohol related incident on morning of 19980710
- 19980714 :       Article ( Willfully disobeying order of superior commissioned officer ) , 19980710
         Article (Failure to obey order, regulation) , 19980710
         Article (Assault) , 19980710
         Article 134 (Drunkenness) , 19980710
         Awarded : Oral reprimand (to E-1) Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :
- 19980408 :       For alcohol rela t ed incident. Specifically, my failure to obey CoO 1700.1J , b y having distilled spirits in my barracks room. I am reminded that I will be strictly held accountable for my actions. I will be evaluated for alcohol abuse and will attend the recommended level of treatment.

- 19980717 :       For alcohol related incident, specifically, the following UCMJ violations: Article 90 Willfully violating a direct order (superior commissioned officer); Article 92 Violation of an order/regulation; Article 128 Assault; Article 134 Drunkenness (unfit for duty). Alcohol privileges will continue to be revoked until your PCS date; per Guantanamo NAVBASE Policy L tr 3-95 you are “banned” from all base lounges for 6 months; attend Alcohol Dependency Screening scheduled for 22 Jul 1998 and comply with all guidance provided by substance abuse counselors. Obey all lawful orders/regulations, control my emotions, and act responsibly. If recommended, attend and complete an alcohol treatment program.


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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A. The Marine Corps Separation and Retirement Manual, (MCO P1600.19E), effective 18 August 1995 until 31 August 2001, 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.       A pplicant contends his discharge was improper because he was misdiagnosed as an alcohol abuser and wrongly referred to Level II treatment in which he refused to participate.
2.       Applicant contends his discharge warrants an upgrade to Honorable based on his Pro/Con marks and overall service record.
3.       Applicant contends his post-service achievements, indicative of his true character, show that the two incidents of misconduct that precipitated his separation were isolated cases and an aberration within his entire record of service.

Decision

 Date : 20 1 1 0 3 17            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. The Applicant identif ied three decisional issues for the Board ’s consideration . The Board complete d 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 retention counseling warnings for possessing hard liquor in barracks room (8 Apr 1998) and an alcohol - related incident involving violations of UCMJ Articles 90, 92, 128 , and 134 (17 Jul 1998) and for o f the Uniform Code of Military Justice (UCMJ): Article 90 ( Willfully disobeying superior commissioned officer, 10 Jul 1998 ) , Article 92 ( Failure to obey order, regulation, 2 specifications: possessing hard liquor in barracks on 4 Apr 1998 and a 10 Jul 1998 incident, specifics NFIR) , Article 128 ( Assault, 10 Jul 1998 , specifics NFIR ) , and Article 134 (Drunkenness, incapacitated for performance of dutie s, 10 Jul 1998). Prior to enlistment, the Applicant’s background revealed three (3) alcohol - possession incidents , one (1) possession of concealed weapon (brass knuckles) , two (2) stoplight violations , and five (5) speeding tickets. The service record indicated the Applicant required a serious offense waiver , granted by the Commanding General, Marine Corps Recruiting Region, for the se offenses committed prior to his enlistment in the Marine Corps. The Applicant’s medical record contained a 28 Jun 1996 enlistment physical exam in which the physician checked “Yes” under ‘Alcohol Abuse’ in section 25, page 2 of the SF 93. The medical record also contained a Psychiatric Evaluation of the Applicant that resulted from an incident in which he received NJP on 14 Jul 1998. The Psychiatric Evaluation report, dated 22 Jul 1998, diagnosed the Applicant with AXIS I: Alcohol Abuse (Suspect Dependence) , and recommended he continue to abstain from alcohol and attend Level II Intensive Outpatient rehabilitation treatment. In the evaluation report, the Psychiatrist notes the following about the Applicant: “started drinking at age 10 , ” “admits 4 blackouts and 10 episodes of passing out , ” “Command directed he cut down on alcohol use, which he did not like being told what to do , ” “craves alcohol during evening shifts , ” “drinks to escape worries , ” “Defense mechanisms to include denial, minimization, and rationalization , ” “patient is unsure he has an alcohol problem , ” and “he has chronic problem with stubbornness and his temper . ” The Applicant was scheduled for Level II rehabilitation treatment but was disenrolled from the program on 17 Aug 1998 due to his “inability to recognize his problem with alcohol” and insisting his problems stemmed from U.S. Marine Corps and being stationed aboard Guantanamo Bay , Cuba. Per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN ), s ubstance abuse rehabilitation failure require s mandatory processing for administrative separation. When notified of a dministrative separation processing using the procedure on 4 Sep 1998 , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review . The Applicant was separated from the Marine Corps on 6 Nov 1998 with a General (Under Honorable Conditions) discharge due to Alcohol Rehabilitation Failure.

: (Decisional) ( ) . The Applicant contends his discharge was improper , because he was misdiagnosed as an alcohol abuser and wrongly referred to Level II treatment for which he refused to participate. T he Applicant contends that he never was an alcohol abuser and that he contests the diagnosis that was the basis of his separation from the Marine Corps. The Applicant’s records indicate he had a history of alcohol abuse prior to enlisting in the Marine Corps. In April 1998, he was reduced in rank to E-2 at NJP (which was suspended for 6 months, but vacated in July 1998 due to further misconduct) and referred to Level I Treatment counseling (IMPACT) due to possessing prohibited alcohol (hard liquor) in the barracks , which was a violation of a command order. In July 1998, the Applicant was involved in an alcohol - related fight and again reduced in rank (to E-1) at NJP and then referred to Level II Treatment (Intensive Outpatient) in which he subsequently refused to participate and complete. On 22 July 1998, the Naval Hospital Staff Psychiatrist conducted an extensive evaluation of the Applicant in which he revealed that he started drinking at the age of 10 and had built a significant tolerance level to hard liquor. Additionally, the report noted that the Applicant admitted to having “four (4) alcohol related blackouts, ten (10) incidents of passing out, and ten (10) fights/ altercations . ” The Applicant was diagnosed a s AXIS I: Alcohol Abuse (Suspect Dependence) and recommended for continued abstinence from alcohol and Level II Alcohol Rehabilitation Treatment. In the 28 Oct 1998 Commanding Officer , Marine Corps Base Quantico , endorsement of the Applicant’s administrative separation package , the CO states that based on “the preponderance of the evidence, the seriousness and likeliness of recurrence, the impact on order and discipline, and potential for rehabilitation and future service” that the Applicant should be separated from the Marine Corps for Alcohol Rehabilitation Failure with a General (Under Honorable Conditions) discharge. Based on the extensive documentation above, the Board found the Applicant’s contention of alcohol abuse misdiagnosis to be unfounded.
Violation of UCMJ Article s 90 and 92 are each considered serious offenses and punishable by six months to five years confinement and a Bad Conduct or Dishonorable Discharge if awarded at trial by punitive courts-martial (Special or General). The Applicant’s command chose not to refer him to trial by courts-martial or process him for administrative separation for commission of a serious offense , which could have resulted in an Under Other Than Honorable Conditions discharge . I nstead , the Commanding Officer opted to retain the Applicant and afford him the opportunity to complete alcohol rehabilitation treatment as recommended by the Staff Psychiatrist (22 Jul 1998 Evaluation Report). Upon the Applicant’s refusal to participate and complete rehabilitation treatment on 17 Aug 1998, the command initiated mandatory administrative separation processing per the MARCORSEPMAN. After a detailed examination of the Applicant’s records, the Board found that the administrative separation from the Marine Corps was proper and the resultant characterization of service awarded upon his discharge was equitable and in accordance with the applicable orders and directives in effect at the time of his separation. Relief d enied.

: (Decisional) ( ) . The Applicant contends his discharge warrants an upgrade to Honorable based on his Pro/Con marks and overall service record. Para 1004, 2, a, (1) of the MARCORSEPMAN explains that proficiency and conduct marks are normally utilized upon end of active service (EAS) to determine characterization. Pro/Con marks equal to 3.0/4.0 or higher rate an Honorable characterization. In the Applicant’s case, he was administratively separated (involuntary separation) and not allowed to complete his active duty service commitment (EAS) due to failure to participate and complete Level II Alcohol Rehabilitation Treatment. For involuntary separations, Para graphs 1004, 2, a, (2) “Honorable upon involuntary separation under chapter 6 ” , 1004, 2, b , (2) “General upon involuntary separation under chapter 6 ” , and 1004, 3 “Guidelines for Determining Characterization for Involuntary Separations Under chapter 6” appl y. These paragraphs state that t he Commanding Officer (who provides a recommendation to the Separation Authority) and the Separation Authority (who makes the final determination on character of service) may utilize standards of performance and conduct as determined by MCO 1610.7 (Performance Evaluation System), MCO P1070.12 (Individual Records Administration Manual) , and customs of the service to determine the Marine’s character of service.

Per the MARCORSEPMAN , characterization of service is recognition of the quality of a Marine’s performance and conduct with Honorable being the highest quality of characterization. A Marine may be awarded a General ( Under Honorable Conditions ) discharge if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. The Applicant’s service record contained 6105 retention counseling warnings for possessing hard liquor in barracks room (8 Apr 1998) and an alcohol - related incident involving violations of UCMJ Articles 90, 92, 128 and 134 (17 Jul 1998) , and for o f the UCMJ: Article 90 (Willfully disobeying superior commissioned officer, 10 Jul 1998); Article 92 (Failure to obey order, regulation, 2 specifications: possessing hard liquor in barracks on 4 Apr 1998, and a 10 Jul 1998 incident, specifics NFIR ); Article 128 (Assault, 10 Jul 1998, specifics NFIR); and Article 134 (Drunkenness, incapacitated for performance of duties, 10 Jul 1998 , specifics NFIR ) that resulted in two reductions in rank from LCpl (E-3) to Pvt (E-1). The Applicant’s record also revealed substandard performance comments from a Staff Sergeant who supervised the Applicant , stating “average to below average performance...never exercised attention to detail...consistently corrected by his peers... never saw an increase in proficiency ”, “conduct of an adolescent...no integrity...no interest in improving self...not committed to anything USMC related . ” The Staff Sergeant additionally noted that the Applicant had lost his Top Secret Clearance (required for Intel Communicator MOS) and that Level I and Level II treatment, EMI , and NJP had no effect on the Applicant’s performance/conduct. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, especially considering his rank, military occupational specialty , and security clearance responsibilities , and falls short of what is required for an Honorable

characterization of service. The Board, after careful consideration of all the facts and circumstances, found that the Applicant’s awarded characterization of service upon separation from the Marine Corps was equitable and in accordance with the applicable orders and directives in effect at the time of his discharge. Relief d enied.

: (Decisional) ( ) . The Applicant contends his post-service achievements are indicative of his true character and show that the two incidents of misconduct that precipitated his separation were isolated cases and an aberration within his entire record of service. The Applicant provided documentary evidence of substantial post-service achievements to include: earning a Bachelor s degree and a Law degree; admittance into the Mississippi State Bar with proof of continued good standing; a strong employment record in the field of law, to include his present position as Assistant District Attorney ; character references; and marriage and child birth certificates . Alt hough his post-service achievements are laudable and significant, the Board determined that the Applicant’s alcohol - related misconduct and subsequent failure of alcohol rehabilitation treatment were not an aberration in an otherwise honorable enlistment, but instead indicative of a long personal history of alcohol abuse , starting at an early age in adolescence, corroborated by pre-enlistment background checks, his enlistment entrance physical exam, in-service misconduct, statements made during his psychiatric evaluation two years into his enlistment , and conduct while enrolled in Level II Alcohol Rehabilitation Treatment. After detailed scrutiny of all the available evidence and due consideration of the extensive post-service achievements of the Applicant, the Board determined this issue did not overcome the circumstances for which the Applicant was discharged nor the resultant character of service awarded based on the orders and directives in effect at the time of his separation , and therefore , did not provide a basis for which relief could be granted.

Summary: After a thorough review of the available evidence, to include documentation submitted by the Applicant, the Applicant’s summary of service, record entries, and the administrative separation process, the Board found the discharge was proper and equitable. Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain ALCOHOL REHABILITATION FAILURE .
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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