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

FOR OFFICIAL USE ONLY

 ex-Cpl, USMC
Docket No. MD05-01149

Applicant’s Request

The application for discharge review was received on 20050629.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051216.  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 3 to 2 that the character of the discharge  shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of alcohol rehabilitation failure.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“The commanding officer recommend an honorable characterization of service (L.J. W_).”

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

“Propriety or Equity Issue(s):  The applicant was led to believe that his discharge would be characterized as Honorable.

Statement:  In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant had Proficiency and Conduct averages of 4.6 and 4.4 respectively.  He is a recipient of the Good Conduct Medal, the National Defense Service Medal, the Sea Service Deployment Ribbon, a Letter of Appreciation, and a Meritorious Mast.

The applicant alleges that he was notified by his commander that he was being processed for administrative separation under honorable conditions.  The record of evidence supports this contention.  On September 16, 1996, C.J. W_ notified the applicant that he was being recommended for separation under honorable conditions.

The Veterans of Foreign Wars’ 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 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

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:

Applicant’s DD Form 214 (Member – 4 and Member – 1) 
Applicant’s DD Form 215 (Member – 4 and Member - 1)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19930123 – 19930314	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19930315		Date of Discharge:  19961125

Length of Service (years, months, days):

Active:    03  08  11  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  33

Highest Rank:  Cpl				MOS:  3381

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (10)		Conduct:  4.4 (10)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Letter of Appreciation, Sea Service Deployment Ribbon, Good Conduct Medal, Meritorious Mast

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:

940613:	Counseling:  Advised of deficiencies in performance and/or conduct (over consumption of alcohol leading to a loss of control and blackout.  This behavior will not be tolerated in the Marine Corps.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960415:	Counseling:  Advised of deficiencies in performance and/or conduct (alcohol related incident, i.e., DUI, at the corner of Two Mile and Adobe road in 29 Palm, CA on 16 March 1996), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960517:	NJP for violation of UCMJ, Article 111:  In that Cpl H_ (Applicant), USMC, while on active duty, did in the town of Twentynine Palms, CA at the intersection of Two Mile Road and Adobe Road on or about 0400 on 16 March 1996 physically control a vehicle while impaired by .15 grams of alcohol per 100 milliliters as shown by chemical analysis.
	Award:  Forfeiture of $282 pay per month for period of 14 days (total forfeiture of $282) (suspended for six months), restriction and extra duty for 14 days (restriction and extra duty will take effect as soon as SNM has completed level three training).  Not appealed.

960606:	SNCOIC (CDACC) recommended to the Commanding Officer, HQBN, that Applicant be administratively discharged due to Level III treatment rehabilitation failure.  Applicant released himself from Level III against medical advice.  Withdrawal from Level III constitutes Level III Failure.
	Applicant has been assessed by a substance abuse counselor and a Medical Officer and diagnosed alcohol dependent.  The Applicant was afforded the opportunity for formal rehabilitation (Level III).

960830:	Applicant notified of intended recommendation for discharge by reason of alcohol abuse specifically, alcohol rehabilitation failure.  The factual basis for this recommendation was:   
a.  Two pages 11 counseling entries dated 940613 and 960415 regarding over-consumption of alcohol leading to a loss of control and blackout, and being the subject of a DUI.  
b.  One NJP dated 960517 for violation of Article 111 of the UCMJ; driving a vehicle while impaired by .15 grams of alcohol per 100 milliliters.  
c.  Level III treatment failure.  
Commanding Officer’s comments:  “The least favorable characterization which you may receive is general (under honorable conditions).  Although the Commanding General, MCAGCC will make the determination of characterization if you are separated, I am recommending you receive an honorable characterization of service.

960905:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

960916:	Commanding Officer, Headquarters Battalion Marine Corps Air Ground Command Combat Center, Twentynine Palms, CA, recommended Applicant’s discharge under honorable conditions by reason of alcohol rehabilitation failure.

961003:	Counseling:  Advised of deficiencies in performance and/or conduct (Failure to show satisfactory progress while being assigned to the battalion weight control/military program.  You have gained 3 pounds since your last weigh in on 960913.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued

961030:	SJA review determined the case sufficient in law and fact.

961101:	GCMCA, CG, Marine Corps Air Ground Combat Center, directed the Applicant's discharge with a general (under honorable conditions) by reason of alcohol rehabilitation failure.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19961125 by reason of alcohol rehabilitation failure (A) with a service characterization of general (under honorable conditions).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found, by a vote of 3 – 2, that the discharge was proper and equitable (B and C).  

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, Applicant states that his Commanding Officer recommended that the Applicant receive an honorable characterization of service.  While the record does show that the Applicant’s Commanding Officer did recommend that the Applicant receive an honorable characterization of service, both the notification of separation proceedings, and the Applicant’s acknowledgement of rights, specify that the least favorable characterization could be general (under honorable conditions) and that the Commanding General would make the determination of the discharge characterization if the Applicant was separated.  In the Applicant’s case, the Commanding General, Marine Corps Air Ground Combat Center, exercising the separation authority provided by MARCORSEPMAN paragraph 6209, determined that the Applicant’s characterization of service would be general (under honorable conditions).   The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  Relief denied.  

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 2 retention warnings and a nonjudicial punishment proceedings for violations of Article 111 (drunken driving) of the UCMJ. Violation of Article 111 is considered a serious offense.  In addition, the Applicant released himself from treatment in a Level III alcohol rehabilitation program and his withdrawal constitutes a Level III failure, which substantiates the reason for which he was discharged.   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 U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is 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.  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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  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