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

 ex-LCpl, USMC
Docket No. MD00-00908

Applicant’s Request

The application for discharge review, received 000714, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020101.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because it was based on one incident in 39 months of service with no adverse action on my part.  In seeking this upgrade to General Under Honorable Conditions I offer the following explanation: In my service in the USMC I was awarded the Combat Action Ribbon.  In DSM IV it is stated that one way in which the individual suffering from Post Traumatic Stress Disorder (PTSD) self medicates him or her self is by alchol abuse.  I am willing to take responsibility for my actions however I do believe that my combat experiences had an adverse affect on me and it is this reason that I respectfully request this upgrade.  Thank You for your consideration.

The Marine Corps program directs that Marines who are identified as alcoholics or as alcohol abusers be referred to an appropriate treatment or rehabilitation program.  Failure to participate in or complete such a program constitutes a basis for an administrative discharge.  The discharge may be characterized as honorable or general, "as warranted by the [service] member's military record."  In no case, however, is alcohol abuse or failure to complete a treatment or rehabilitation program a basis for a court-martial discharge.  Please reference MCO 5370.6A and MARCORSEPMAN 6016.1.e.  We contend at the least, a violation of the important principles contained in these regulations is inequitable and provides an equitable basis for upgrade.

We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge is reviewed for a General under Honorable Discharge.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USMCR(J)		891107 - 891227	COG

Period of Service Under Review:

Date of Enlistment:  891228		Date of Discharge:  930416

Length of Service (years, months, days):

	Active:    03  03  19
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  41

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (8)			Conduct:  4.0 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, CAR, SSDR (2), KLM, NUM

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Pattern of misconduct (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.3.

Chronological Listing of Significant Service Events:

911120:	NJP for violation of UCMJ, Article 89:
Specification: Disrespectful to 2nd Lt by saying "Fuck Off" and "If you touch me again I will beat the shit out of you"
Violation of UCMJ, Article 90:
Specification: Willfully disobeyed 2nd Lt's order to return to his rack between 0001-0100, 11Nov91.
Awarded forfeiture of $204.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

920224:	Counseled for deficiencies in performance and conduct.  [Excessive use of alcohol which required command action on 911211 which was identified by my command on 911211.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920325:	NJP for violation of UCMJ, Article 113:
Specification: Sleeping on post on 0135, 22Mar92.
Awarded forfeiture of $225.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

921124:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident, specifically, Level II relapse/excessive abuse of alcohol.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921130:	Applicant evaluated and found to be alcohol dependent.

921228:	Counseled for deficiencies in performance and conduct.  [Failure to maintain sufficient funds in your checking account.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930127:	Counseled for deficiencies in performance and conduct.  [Failure to complete the Level III Alcohol Rehabilitation Treatment Program.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930201:	Applicant declined rehabilitation or enrollment in the VA Drug and Alcohol Rehabilitation Program in conjunction with discharge.  Applicant provided the addresses of the nearest VA hospital/facility which can provide appropriate treatment nearest applicant’s home of record.

930310:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol rehabilitation failure and misconduct due to a pattern of misconduct.

930310:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

930310:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  The factual basis for this recommendation was failure of Level III alcohol rehabilitation, derogatory counseling entries, and two nonjudicial punishments. 

930401:	SJA review determined the case sufficient in law and fact.

930405:	GCMCA [Commanding General, 1st Marine Expeditionary Brigade] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930416 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In the applicant’s issue 1, the Board found the applicant’s argument that his discharge “was based on one incident in 39 months of service with no adverse action on my part” to be not true.  In fact, a careful review of the applicant’s service record reflects four adverse counseling entries, two convictions at non-judicial punishment, a DUI, uttering worthless checks, and failure to complete two separate alcohol treatment/rehabilitation programs.  These offenses clearly establish a pattern of misconduct, which was the basis for the applicant’s discharge under other than honorable conditions.  Relief denied.

In the applicant’s representative’s issue, the Board found that while the applicant’s willful failure to complete two alcohol rehabilitation programs prejudiced his fitness for continued Marine Corps service, the basis for his discharge was the pattern of misconduct listed above.  It is further noted the applicant plead guilty to all NJP specifications, nor chose to make rebuttal statements in any of the four counseling entries.  Relief denied.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  However, there is no law or regulation that provides that 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.  Normally, to permit relief, an error or injustice must be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record.  
At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

B.  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 of the UCMJ, Article 90, willful disobedience of a lawful order.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023