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

  ex-1Lt, USMC
Docket No. MD03-00703

Applicant’s Request

The application for discharge review was received on 20030310.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040205.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/RESIGNATION, authority: MARCORSEPMAN Par. 4104.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “On 11 SEP 99 an unfortunate incident occurred, which resulted in my separation from the Marine Corps.  My intention now, with your assistance is to amend my current discharge status.  I believe that my discharge is in error because it is based on an incident which was misconstrued; and as shown by my attached references and my fitness reports, my performance of duty during my five years of active time was impeccable.  The incident that took place on 11 SEP 99 was my unjust detainment in Las Vegas for falling asleep in a cab.  Earlier that evening some of my friends wanted to take me out for some drinks to say farewell as I was leaving 29 Palms.  Then later that evening realizing that I had too much to drink, I tried to do the responsible thing for that situation and hailed a taxi to take me back to my hotel.  On the way back to the hotel, I fell asleep, it is my understanding that at this point the taxi driver could not rouse me and immediately requested the assistance of two police officers who happened to be in the parking lot of my hotel as well.  The police officers did wake me, then proceeded to ask me "Why are you trying to rip off the cab driver?”  This was about a $7.00 cab fare and I had over $50 in my pocket.  I replied that I had fallen asleep and had no intention of defrauding the taxi driver, and that I wanted to pay him what I owe so I can go to my hotel room and go to bed.  They told me it was too late for that, and when I asked why it was too late, they told me that I was under arrest for defrauding a cab driver.  Naturally, at this I was shocked, being that I had done nothing wrong, because how would I be defrauding a cab driver if I was still in the back seat of the cab when the police officers got there.  I never broke any law, I did not drive under the influence or do anything else foolish that would result in my committing any crime of any sort.  I merely wanted to go back to my hotel room.  So the real issue was my drinking and allowing myself to get into a situation like that in the first place, which I do take complete responsibility for.  Most importantly, alcohol is no longer a part of my life and has not been since this unfortunate occurrence.  However, at the time, I was referred to the Substance Abuse Counselor who diagnosed me as alcohol dependant and referred me to Level III treatment, which I successfully completed.  According to Marine Corps Order 5300.12A, which is the Marine Corps substance abuse order, states on pg. 1-7 item 5 "Any Marine diagnosed as having the disease of alcohol disease will be identified, treated and restored to full duty commensurate with their grade without prejudice."  It also states on page 1-17 section 1202 item g “Return to full duty those Marines who successfully complete an appropriate treatment program.” and continues to item h “Process for administrative separation those Marines who do not successfully complete or refuse appropriate treatment programs or who are unable to achieve/maintain accepted Marine Corps standards of performance and/or conduct after treatment”.  Finally, on page 1-19 and 1-20 section 1208 item 2a and 2b “a. Marines assigned to a Level II or III treatment program during the past twelve months, who have had prior performance or conduct problems, may request an extension for up to 12 months to allow them to complete their continuing care/aftercare treatment program, and to allow the command to observe the Marine’s performance and conduct. b. Reserve Officers in this situation may request an extension of active duty per the current edition of MCO 1001.45. In all instances, the decision to authorize reenlistment or approve augmentation or retention of a Reserve Officer will be based on conduct and performance of duty.” I bring these items to your attention merely to bring to light that I was not afforded any of these opportunities. Had these been given to me, I am quite confident that I would have shown beyond a shadow of a doubt that I was not only capable of remaining a Marine Corps Officer, but being a very strong asset to the Marine Corps. This all came to light recently, when because of world events, I wanted to try to become a part of the Marine Corps again, to be there for my country and particularly for the Marine Corps, who I know is in need of Intelligence Officers. My ability to be an effective Intelligence Officer again, I do not believe is or was ever in question, as my references can attest to. The issue was my problem with alcohol, which was addressed then, and I have not had anything even close to a scrape with any kind of trouble alcohol-related or non-alcohol-related since the events of that night in Las Vegas. There is not a day that goes by that I am not haunted by that night and how things ended up being blown out of proportion, but the good that came out of it was that I rid myself of the one thing that ever held me back from any of my pursuits. However, I still have a blemish on my record, that still holds me back as a direct result of that night. I was severely punished, as I lost my career in the Marine Corps, please do not continue to punish me for a lesson learned, by keeping my discharge status where it is. I have never been a bad person or a person who ever intentionally breaks the law. It is because of this, I am requesting to be put back on level ground with my peers. if it is your decision that you do not want to raise my status to allow me to return to the Marine Corps, then I understand and it is something I will have to accept. However, I am asking you to at least raise it to Honorable, so I can progress and excel in the rest of my life. Please do not look upon this request as just paper and words, but as something that is a crucial factor in my life. Although I marked the box on the form to not appear in front of the board, if you believe I would be better served to appear to answer any questions, I would certainly make myself available for travel to do so. Thank you for your time and consideration on this important matter. I respectfully await your response.”

Documentation

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

Copy of DD Form 214
Letter of recommendation from LtCol B_
Letter of recommendation from Col H_
Letter of recommendation from Capt C_
S-3, 23rd Marines endorsement for Applicant to join 23rd Marines
Letter of recommendation from W_ Z_, Ph.D.
Letter of recommendation from Applicant’s father
Letter of recommendation from Applicant’s mother
Letter of recommendation from Applicant’s stepmother
Four pages from Applicant’s service record
Four pages from MCO P5300.12A, Marine Corps Substance Abuse Program 

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		950828 - 960816	HON
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  950828		Date of Discharge:  000602

Length of Service (years, months, days):

	Active:  04  09  05
	Inactive:  None

Age at Entry:  24			Years Contracted:  4

Education Level:  16			AFQT:  94

Highest Rank:  1LT

All Fitness Reports were available for review

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, MM (2), CC 

Days of Unauthorized Absence:  None 

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

GENERAL (UNDER HONORABLE CONDITIONS)/RESIGNATION, authority:  MARCORSEPMAN Par. 4104.

Chronological Listing of Significant Service Events:

990215:	NJP for violation of UCMJ, Article 133: Acted drunk and disorderly in front of both civilian and enlisted personnel, to the disgrace of the armed forces; violation of UCMJ, Article 134: On 981218, drunk and disorderly.
		Award:  Punitive letter of reprimand.  Not appealed.

990223:	CG, 1st MARDIV recommended to CMC that Applicant not show cause for retention.

991008:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident in December 1998.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

991215:	NJP for violation of UCMJ, Article 95: On 990912 resisted apprehension by an officer of the Las Vegas Metropolitan Police Dept.; violation of UCMJ, Article 133: in a public place acted drunk and disorderly to the disgrace of the armed forces.
	Award:  Forfeiture of $1435.00 per month for 2 months, restriction and extra duty for 45 days, and a punitive letter of reprimand.  Not appealed.

000105:	Applicant requested qualified resignation in lieu of processing for administrative separation for cause and acknowledged understanding that his characterization of service may be under honorable conditions (general).

000114:	Commanding Officer recommended discharge under honorable conditions (general).  The factual basis for this recommendation was the Applicant’s two NJPs.  

000131:	CG, I MEF recommended to CMC that Applicant not show cause for retention and that his resignation be approved with a general discharge.

000418:	CMC recommended approval of Applicant’s qualified resignation in lieu of administrative processing for cause.  Recommended that service be characterized as under honorable conditions (general) and that the separation code be BNC1 (resignation – unacceptable conduct).

000509:	 M&RA approved CMC’s recommendation above.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant resigned on 20000602 with a General (Under Honorable Conditions) due to unacceptable conduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1.  A characterization of service of general (under honorable conditions) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions and an adverse counseling entry on another occasion.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable is inappropriate.   The Applicant was processed for administrative separation due to his unacceptable conduct, not due to his alcohol dependence.  Therefore, there was no requirement to restore him to full duty without prejudice after his completion of alcohol rehabilitation.  The Board found that his alcohol dependence did not mitigate his misconduct.  The Board found no impropriety or inequity in the Applicant’s claim that he was not informed that he could have requested an extension on active duty due to his completion of a Level III alcohol treatment program.  Relief denied.

The NDRB has no authority to make recommendations to permit reentry or reinstatement into the Naval Service or any other branch of the Armed Forces.  The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of service in question.  No such error or inequity occurred during the Applicant’s service.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 4104, Marine Corps Separation and Retirement Manual (MCO P1900.16E), effective 31 January 1997 until present).           

B.  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.  

C.  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.

D.  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