ex-PFC, USMC
MD06 -01071

Current Discharge and Applicant’s Request:

Application Received:  				20060814
Narrative Reason for Separation:			
Character of Service:				
Discharge Authority:				MARCORSEPMAN PAR 6209.1
Last Duty Assignment/Command at Discharge:	Hqsvcco marforlant

Applicant’s Request:
	Narrative Reason change to: 		not applicable
	Characterization change to:		
	Review Requested:			
Representation:  					

Decision:

Date of Decision:					20070628
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			YES
Complete Discharge Package:			YES
Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	EQUITABLE

By a vote of  the Characterization shall  GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of  the Narrative Reason shall  ALCOHOL REHABILITATION FAILURE.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				20000714-20001002 COG
Active:        		               		NONE 
Period of Service Under Review:
Date of Enlistment:  				20001003     
Years Contracted:  				;        
Date of Discharge:				20030319
Length of Service:				02  Yrs  05  Mos  07  Days
Time Lost During This Period:			10
Days Unauthorized Absence:			10     
Days Confinement:				NONE     

Education Level:  				
Age at this Enlistment:  				
AFQT:  						41
MOS:						0121
Highest Rate/Rank:				LCPL

Performance Evaluation Averages (number of marks):
Proficiency:					NOT FOUND IN RECORD
Conduct:					NOT FOUND IN RECORD

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL, EXPERT RIFLE BADGE

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20020123:	NJP for violation(s) of UCMJ:
	Article 111: On or about 2320, 20020104, in physical control a vehicle while impaired by alcohol.  BAC test was .19.
	Award:  Forfeiture of $651 for 2 months (suspended for 6 months), restriction for 45 days, extra duty for 14 days, reduction to PFC.
	Not appealed.

20020412:	NJP for violation(s) of UCMJ:
	Article 86: Did without proper authority absent himself from his appointed place of duty 0730, 20020305 until 2245, 20020315.
	Award:  Forfeiture of $553 for 2 months (suspended for 6 months), reduction to Pvt.
	Not appealed.

20021121:	Counseling:  Advised of deficiencies in performance and conduct for recent alcohol related incident on 20021110 where you were required to be taken into custody by local police authorities for resisting apprehension and drunk in public.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20030113:	Applicant released from Substance Abuse Rehabilitation Program on 20030110 as a result of noncompliance with program rules and regulations.  

20030210:	Counseling:  Advised of deficiencies in performance and conduct for your failure to complete Level III alcohol treatment.  You were discharged from Level III alcohol treatment due to noncompliance with program rules and regulations.  You were afforded the opportunity to explain why you should be allowed to stay in Level III in front of a board that decided to expel you from treatment.  You chose not to do so.  Failure to complete Level III alcohol treatment reflects poorly on your professionalism, dedication, and obedience and is cause to be processed for administrative separation in accordance with MCO P5300.12A.  Necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					20030304
Basis for Discharge:				

Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	
Record Supports Narrative Reason:			
Date Applicant Responded to Notification:		20030304
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			       

Recommendation of Commanding Officer (date):	 (UNDER HONORABLE CONDITIONS) (20030304)
SJA review (date):				NOT FOUND IN RECORD       
Discharge directed by (date):		COMMANDER, U.S. MARINE CORPS FORCES, ALANTIC (20030306)	
Narrative reason directed:				
Characterization directed:				 (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:			20030319

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				1
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		1

        Total Number of Pages:				2

       Description of Other Documentation:
       	Certificate of Navajo Indian Blood

Applicant’s Issues, as summarized by the Board:
1.  To be able to join the military service again.
2.  Post service
	
Issue 1:  The Board determined that this Issue is not an issue which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to page one of the Addendum regarding this issue. 

Decisional Issues:
The Board accepted Issue 2 for consideration.

Issue 2 (Equity).  There is credible evidence in the record that the Applicant used alcohol irresponsibly and failed treatment for alcohol abuse.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  A general (under 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 the award of one retention warning and two nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ), Articles 86 and 111.  Violation of UCMJ Article 111 is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.  Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  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, is considered.  The Applicant provided no statements as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.  Relief denied. 
  
In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Minority Opinion

None

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 2001 until Present, Paragraph 6209, ALCOHOL ABUSE REHABILITATION FAILURE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs,  Part V, Para 502, Propriety  and  Para 503, Equity.

C.  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.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/ Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/ RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  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