ex-, USMC

Current Discharge and Applicant’s Request

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

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      19980520 - 19980609     Active: 

Period of Service Under Review:
Date of Current Enlistment: 19980610     Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20020306      Highest Rank:
Length of Service: Year(s) Month(s) 27 Day(s)
Education Level:         AFQT: 69
MOS: 6114
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle Pistol LoA MM (2)


NJP:

- 20010605:      Article
         Awarded: Suspended: Vacated 20011011

- 20011130:      Article
         Article 134 (General article, incapacitated with liquor while in performance of duties)
         Awarded: Suspended:

SCM:

- 20011031:      Article 86 (Absence without leave, failed to go to at the time prescribed to appointed place of duty) 2 specifications
         Article 134 (General article, incapacitated for the proper performance of duty as a result of previous overindulgence of intoxicated liquor)
         Sentence: (20011031-20011124, 24 days)

SPCM:

CC:





Retention Warning Counseling:

- 20001218:      For unofficially using your government Travel Charge Card during October 1999 through July 2000 for personal use. You had complete control of your GTCC during these times and realized that you were not authorized to use it.

- 20010605:      For unauthorized absence

- 20011010:      For unauthorized absence

- 20011130:      For being under the influence of alcohol while reporting to duty. [Extracted from Commanding Officer’s letter dated 20020212]

NDRB Documentary Review Conducted (date):        20140918
NDRB Documentary Review Docket Number:   MD14-00980
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.



Administrative Corrections to the Applicant’s DD 214

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

         “”
         “MISCONDUCT”
        
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:           Rehabilitation/Treatment:                 Criminal Records:       
         Personal Documentation:           Community Service:                References:     
         Department of VA letter:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 .

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

Applicant’s Issues

1.       The Applicant contends that his drinking problem began when his fiancé chose not to be with him anymore.
2. The Applicant contends that a civilian provider told him that he may have been dealing with depression in-service.
3. The Applicant contends that he was counseled and referred to impact classes and never received them but was instead processed out.
4. The Applicant contends that his post-service conduct is worthy of consideration for an upgrade.

Decision

Date: 2015812            Location: Washington D.C.        Representation:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
By a vote of the Reenlistment Code 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The 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, for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 2 specifications), and Article 134 (General article – incapacitated with liquor while in performance of duties, 1 specification); and for of the UCMJ: Article 86 (Absence without leave, 1 specification), and Article 134 (General article – incapacitated for the proper performance of duty as a result of previous overindulgence of intoxicated liquor). Based on the offense(s) committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

As a result of the Applicant’s claim that a MENTAL HEALTH issue may have impacted their discharge, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. The Applicant’s service record does not document that the Applicant was diagnosed with a mental health disorder while serving in the armed forces.


: (Decisional) () . The Applicant contends that his drinking problem began when his fiancé chose not to be with him anymore. The Applicant also contends that a civilian provider told him that he may have been dealing with depression in-service. The NDRB recognizes that serving in the military is challenging and is made even more difficult when dealing with personal stressors. Most servicemembers regardless of their personal stressors, however, serve honorably and therefore earn their Honorable discharges. In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he willingly attempted to use the numerous services available for servicemembers who undergo personal problems during their enlistment, such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, or even Family Advocacy Programs. Furthermore, there is no evidence in the record showing that the Applicant was seen for depression or any other mental health condition that may warrant mitigation to his misconduct. However, there is evidence that the Applicant was seen by medical professionals at the Alcohol Rehabilitation Department on two separate occasions by the direction of his command as a result of alcohol related incidents and not on his own accord. Therefore, the NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct. Relief denied.

: (Decisional) () . The Applicant contends that he was counseled and referred to impact classes and never received them but was instead processed out. The NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. Regulations require members who have an ongoing history of alcohol abuse to be medically screened for an alcohol problem. If diagnosed as dependent on alcohol by competent medical authority, which does not include the commanding officer, appropriate treatment, must be offered prior to separation. The purpose of this treatment is not to rehabilitate a service member for further service but rather to provide treatment before separation. The record shows that the Applicant was screened for alcohol abuse on two separate occasions, October 18, 2001 and December 17, 2001. Both evaluations recommended an Alcohol Impact Class but neither of them diagnosed the Applicant as being dependent. The first evaluation from October 18, 2001 recommended an Alcohol Impact class from 5-9 November 2001. The Applicant states that he never went to the class on these dates and the record clearly documents that the Applicant was in confinement from 20011031 – 200011124 as a result of his sentence from the summary court-martial. On the screening conducted on December 17, 2001, it states that “The evaluation does not reveal a pattern of alcohol use, which may indicate a substance abuse disorder” and recommends Impact classes at his next duty station. The Board has no evidence to show that the Applicant’s Command denied the Applicant an opportunity to attend an Impact class prior to separation beyond the Applicant’s mere statement he never attended.

When questioned by the NDRB as to whether he may have been minimizing the amount and occasions of his drinking during the evaluations, the Applicant admitted to the Board that he may have not have been 100 percent truthful during the evaluations and he did not think that he had a problem with alcohol at the time. Furthermore, the Applicant provided testimony during his hearing that he did not have any more misconduct with alcohol after his confinement from summary court-martial. When the Applicant was shown the evidence in the official record that he was released from confinement on 20011124, and was involved in an alcohol incident on 20011128 that resulted in a finding of guilt at NJP on 20111130, he had no recollection of the incident and continued to state that he had no other incidents after his confinement. However, the Applicant did admit that it was many years ago and some of the specifics have been forgotten. After an exhaustive review of the record, a preponderance of the evidence reviewed supports the conclusion that the Applicant committed a pattern of misconduct, that separation from the Marine Corps was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. Relief denied.

: (Decisional) () . The NDRB considers 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. The Applicant provided a personal statement, evidence of educational accolades, job training certifications, character references, in-service acknowledgments and awards, a letter of initiation in the American Legion, a certificate of Baptism, and a certificate of completion for the state of Maryland alcohol and drug outpatient program. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, 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 establishes that the in-service misconduct was an aberration. The Applicant admitted during his personal hearing to having several periods of unemployment and many issues involving alcohol post-service. In particular, the Applicant spoke of a 2009 incident in which he stole a vehicle and was charged with unlawfully taking a vehicle and DWI which resulted in jail time. The Board determined that the documentation submitted by the Applicant does not demonstrate that his in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. 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 characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain . The Applicant is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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