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

 ex-PVT, USMC
Docket No. MD03-01230

Applicant’s Request

The application for discharge review was received on 20030714.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  After a thorough review of the available 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)/ALCOHOL REHABILITATION FAILURE, authority: MARCORSEPMAN Par. 6209.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  While the discharge due to Alcohol Rehabilitation Failure was correctly enforced, I admit during that period in my life I had several personal issues I did not know how to handle.  Some of those personal issues were immaturity and loneliness from being away from home.  My refusing the Alcohol Treatment after being counseled and informed by medical staff that I would be discharged is a prime example of my immaturity.  Not having parents or other family members who would guide and support me morally and spiritually was very hard to accept.  Due to the pressure and low self-esteem, I ended up around the wrong group of peers.  Before being discharged I was also informed by the government that I would be able to seek medical help and assistance and still be able to obtain veteran benefits once I was discharged.  
Since my discharge I successfully completed the Alcohol and Substance Abuse Program offered through the V.A. Hospital.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with 32 C.F.R., section 724.166 and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue, and following statement in supplement to the Applicant’s petition. 

An administrative error is noted on DD Form 214.  The statement in Block 18 regarding the Marine Corps Reserve is not applicable.  

The service record is incomplete.  In particular, the discharge package is missing.  Review of the available records reveals that this former member maintained satisfactory overall PRO/CON markings of 4.3/4.3 and earned the RSB.  He was awarded NJP on 000411 for VUCMJ, Art. 92.  Alcohol Treatment Facility discharge report dated 000719 indicates that he was a treatment failure and was recommended for administrative separation.  He was awarded NJP on 001219 for VUCMJ, Arts. 92, 134.  He was discharged General (Under Honorable Conditions) due to alcohol rehabilitation failure as authorized by MARCORSEPMAN, Par. 6209.

Essentially, as noted on DD Form 293 attachment, this Applicant is requesting that his discharge be upgraded because there were extenuating personal issues of immaturity and loneliness that were not considered at the time of his discharge. He has submitted treatment records from the Department of Veterans Affairs substance abuse rehabilitation program indicating that he successfully completed the program on 010918 for the Board’s consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Copy of DD Form 214
Twelve pages from Applicant’s Service Record Book
Substance Abuse Rehabilitation certificate dtd 18 Sep 2001
Fifty-two pages of Applicant’s medical records

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		990226 - 990329	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990330		Date of Discharge:  010406

Length of Service (years, months, days):

	Active:    02  00  07
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  43

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3  (2)			Conduct:  4.3  (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  None 

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

GENERAL (UNDER HONORABLE CONDITIONS)/ALCOHOL REHABILITATION FAILURE, authority:  MARCORSEPMAN Par. 6209.

Chronological Listing of Significant Service Events:

000320:	Counseled for deficiencies in performance and conduct.  [Intoxicated/UA.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

000411:	NJP for violation of UCMJ, Article 92: Failed to obey lawful order.
	Award:  Forfeiture of $263 per month for 1 month(s), restriction and extra duty for 14 days.  No indication of appeal in the record.

000719:	Applicant discharged from Alcohol Treatment Facility for failure.   Clinical Director, Alcohol Treatment Facility recommended administrative separation.

001104:	Medical evaluation by Staff Psychologist.

	AXIS I:  Alcohol abuse, r/o depressed
	
	AXIS III:  Alcohol intoxication 

001104:	Nursing notes extract from Applicant’s medical record [threats [verbal] to PMO and families.  Pt not cooperative.  Threats of physical abuse to staff… pt spitting on staff.]

001219:	Counseled for deficiencies in performance and conduct.  [Underage drinking problem and other alcohol related incidents.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

001219:	NJP for violation of UCMJ, Article 92:  Failure to obey lawful order by consuming alcohol and was drunken and intoxicated.  Article 134:  Specification 1:  Drunk and disorderly conduct.  Specification 2:  Drunk and disorderly in a combative manner, threatened PMO.  
Awarded reduction to E-1 and 30 days CCU.  Appealed.

010221:	SF 600 entry [Failure, Alcohol Abuse Treatment.  Offered VA treatment].

Complete discharge package not available in service record book.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was given a General (Under Honorable Conditions) discharge on 20010416 due to Alcohol Rehabilitation failure (A).  In the absence of a complete discharge package, the Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the available 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.  When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  A General discharge 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 nonjudicial punishment proceedings for violations of the UCMJ to include violations of Article 92, failure to obey an order, and Article 134 for drunken driving and drunk and disorderly conduct.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his problems in the Marine Corps can be attributed to "personal issues."  While he may feel that immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and rehabilitation failure.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

Issue 2.  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/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s alcohol rehabilitation failure and misconduct is clearly documented.  Therefore, relief is denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Marine Corps Separation and Retirement Manual, (MCO P1600.19E), effective 950818 until 010831, Paragraph 6209, ALCOHOL REHABILITATION FAILURE.
 
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