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

 ex-Pvt, USMC
Docket No. MD05-00665

Applicant’s Request

The application for discharge review was received on 20050308.  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, D.C. Metropolitan area.  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 Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050727.  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: 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, as stated

Applicant’s issues, as stated on the application:

1.  “I was an undiagnosed alcoholic while in the Marine Corps.  My commanding officer did not allow me to attend NADSAP drug and alcohol program because he stated that training was more important.  My discharge was improper because I was not afforded the opportunity to treat my alcoholism, which is a disease.  Service regulations state that alcoholism and drug addiction are to be treated before members are separated and that separation is a last resort.”

Additional issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars):

“2.  We ask that after careful review of the evidence and the Applicants contentions that you change the discharge as appropriate.”

Documentation

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

None were submitted

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		871203 - 881201	COG

Period of Service Under Review:

Date of Enlistment:  881202		Date of Discharge:  940126

Length of Service (years, months, days):

	Active:    05  01  25		Does not exclude lost time
	Inactive:  None

Age at Entry:  18			Years Contracted:  6

Education Level:  12			AFQT:  58

Highest Rank:  LCpl			MOS:  0331

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (13)			Conduct:  3.8 (13)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, KLM, MM (3), GCM, NUC, SSDR with 2 Stars, SASM with 2 Stars

Days of Unauthorized Absence:  8

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:

871202:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

900410:	Counseled for deficiencies in performance and conduct.  [Specifically my lack of judgment and responsibility which resulted in my getting a DWI aboard MCB Camp Lejeune with a (BAC .190).  I understand my Base driving privileges are suspended for (1) one year and that I must attend Alcohol/Drug education training.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900609:	Counseled for deficiencies in performance and conduct.  [Suspension of driving privileges.  Privileges aboard CLNC suspended until 13 March 1993.  Right to appeal to the base inspector.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900629:	Counseled for deficiencies in performance and conduct.  [Paternity suit.  Specifically his responsibilities if in fact he is the father with regards to possible ramifications without proper counsel.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920414:	NJP for violation of UCMJ, Article 86:
Specification: Unauthorized absence from the USS GUADALCANAL from 0300, 920401 to 2130, 920401.
Violation of UCMJ, Article 92:
Specification: Failure to obey order in that SNM did at 2130, 920401 failed to obey the liberty order by returning late.
Violation of UCMJ, Article 107:
Specification: On board USS GUADALCANAL at 2130, 920401 SNM did falsely tell his 1st Sgt that he was on board during the morning hrs of 920401.
Awarded forfeiture of $253.00 per month for 1 month, restriction for 14 days, extra duties for 7 days.  Restriction suspended for 3 months.  Not appealed.

920912:	Applicant charged with driving while impaired, Level 2.

921104:	NJP for violation of UCMJ, Article 81:
Specification: In that on or about 0130, 921003 SNM did conspire with 2 other Marines to commit assault on LCpl F_.
Violation of UCMJ, Article 93:
Specification: In that on or about 0130, 921003 SNM was cruel toward LCpl F_, a person subject to his orders, by kicking him in the face.
Violation of UCMJ, Article 116:
Specification: In that on or about 0130, 921003 SNM did participate in a breech of peace by wrongfully assaulting LCpl F_.
Violation of UCMJ, Article 128:
Specification: In that on or about 0130, 921003 SNM did wrongfully strike LCpl F_ in the face with hand and foot.
Violation of UCMJ, Article 134:
Specification: In that on or about 0130, 921003 SNM was drunk and disorderly, which conduct was of a nature of bring discredit upon the armed forces.
Violation of UCMJ, Article 130:
Specification: In that on or about 0130, 921003 SNM did unlawfully enter LCpl F_’s room with the intent to commit a criminal offense, to wit: to assault LCpl F_, therein.
Violation of UCMJ, Article 86:
Specification: In that SNM was UA/AWOL from 0730, 921016 until 1630, 921016.
Awarded forfeiture of $501.00 per month for 2 months, reduction to E-3.  Forfeiture of $501.00 for 2 months suspended for 6 months.  Not appealed.

921113:	Consolidated Drug and Alcohol Center, Marine Corps Base, Camp Lejeune:  Applicant evaluated and found to an alcohol abuser.

930801:	Applicant to unauthorized absence 1200, 930801.

930806:	Applicant from unauthorized absence 0530, 930806 (4 days/surrendered).

930818:	Consolidated Drug and Alcohol Center, Marine Corps Base, Camp Lejeune Consultation report: Diagnostic impression: Alcohol dependence.  Applicant completed NADSAP in 1990.  Recommendations: Level III treatment ARD/ARC.  3 AA meetings weekly (monitored).  Liver function test at local BAS.  Weekly meeting with command SACO.  

930825:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 112a:
	Specification: In that LCpl M_ N_ C. (Applicant) did wrongfully and knowingly use a controlled substance, to wit: THC.
	Charge II: violation of the UCMJ, Article 86
	Specification 1: In that LCpl M_ (Applicant) did, on or about 1200, 1 August 93, absent himself from his appointed place of duty and did remain so absent until 0530, 6 August 93.
Specification 2:  In that LCpl M_ (Applicant) did, on or about 0530, 23 July 93, absent himself from his appointed place of duty and did remain absent until 26 July 93.
	Finding: to Charges I and II and the specifications thereunder, guilty.
	Sentence: Forfeiture of $542.00, confinement for 30 days, reduced to E-1.
	CA action 930902:  Sentence approved and ordered executed.  The forfeiture of $542.00 pay per month for 1 month is suspended for 6 months.

930826:	Applicant to confinement.

930918:	Applicant from confinement.

930921:	Applicant arrested for DWI.

930922:	Arrest warrant issued by County of Onslow, State of North Carolina due to probation violation.

930929:	Director, Consolidated Drug and Alcohol Center, Marine Corps Base, Camp Lejeune: Applicant diagnosed as alcohol dependent and drug abuser.  Applicant recommended for discharge processing.

931006:	State of North Carolina, Onslow County, Judgment/order or other disposition: Applicant admits guilt.  Action:  Probation revoked, imprisonment for a term of 1 year in the custody of North Carolina Department of Correction.

931019:	Consolidated Drug and Alcohol Center, Marine Corps Base, Camp Lejeune Consultation report: Diagnostic impression: Alcohol Dependence continuous, Cannabis Abuse.  Recommendations: Client be processed for discharge IAW 246/92.  Ensure VA rights are given.

931021:	Drug and Alcohol Center, Marine Corps Base, Camp Lejeune:  Applicant signed statement of understanding of treatment for substance abuse at a Veterans Administration Medical Center.

931117:	Judge Advocate Review:  In the case of the Applicant’s summary court-martial tried 930825, the SJA recommended Charge I and the specification thereunder be set aside and the Applicant’s page 13 entry be modified accordingly.

931123:	Counseled for deficiencies in performance and conduct.  [Continued involvement with civilian authorities.  Specifically, violating of parole by driving on state revocation and driving while intoxicated which resulted in serving approximately 19 days in state penitentiary.]  Necessary corrective actions explained, sources of assistance provided.

931206:	Applicant notified of intended recommendation for discharge by reason of misconduct due to minor disciplinary infractions, pattern of misconduct, commission of a serious offense, and civilian conviction.  The least favorable characterization of service which you may receive is under other than honorable conditions.

931206:	Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

931206:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a minor disciplinary infractions, pattern of misconduct, commission of a serious offense, and civilian conviction.  The factual basis for this recommendation was your summary court-martial of 25 August 1993, his two nonjudicial punishments of 14 April 1992 and 4 November 1992, and his civilian conviction for driving while impaired and subsequent revocation of his probation.

940106:	Consolidated Drug and Alcohol Center: Applicant signed statement of understanding of treatment for alcohol/substance dependence at a Veterans Administrative Medical Center.  Applicant did not request treatment in conjunction with discharge.

940113:	SJA review determined the case sufficient in law and fact.

940120:	Commanding General, 2d Marine Division, MarForLant, Camp Lejeune, NC 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 19940126 under other than honorable conditions for misconduct due to a pattern of misconduct (A and 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).

When the service of a member of the Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions 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 three retention warnings, nonjudicial punishment proceedings and a summary court-martial conviction for violations of Articles 81, 86, 92, 93, 107, 112a, 116, 128, 130 and 134 of the UCMJ.  The Applicant’s misconduct includes multiple incidents of driving under the influence of alcohol, a probation violation and a civil conviction.  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 his discharge was improper because he was not afforded the opportunity to treat his alcoholism.  If there is evidence of alcohol or drug dependence, regulations require a service member be evaluated by a qualified drug and alcohol counselor and a medical officer.  The Applicant’s diagnosis of alcohol dependence and drug abuse made the offer of VA rehabilitative treatment mandatory.  The Applicant was notified of his eligibility for treatment on 19931021 and 19940106.  On 19940106, the Applicant declined treatment in conjunction with his discharge.  In addition, there is evidence in the record that the Applicant attended the Navy Alcohol and Drug Safety Program in 1990.  Relief on this basis in not warranted. 

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.  Representation at a personal appearance hearing is recommended but not required.

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 111, drunken driving.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		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