ex-, USMC
MD06-01219

Current Discharge and Applicant’s Request

Application Received:  				20060911
	Characterization of Service:		
	Narrative Reason:				
	Discharge Authority:			MARCORSEPMAN 6210.3
	Duty Assignment/Command at Discharge:	MATSG-21, NAS PENSACOLA, FL

Applicant’s Request:
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:  				
	
Applicant’s issues (as summarized by NDRB):
1.  Misconduct caused by anxiety.
					
Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  .

Date of Decision:  20070816			Location of Board:  Washington D.C.

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

Issue 1 ().  The Board construed the Applicant’s assertion that “anxiety caused” his misconduct because he was “self medicating with the use of alcohol” to be a claim that he was not responsible for his misconduct.  A general discharge is warranted when a member’s service has been honest and faithful but significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  An under other than honorable conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected of a Marine.  The Applicant’s service was marred by 2 adverse counseling entries, 2 nonjudicial punishment proceedings for violations of Articles 92 and 134 of the UCMJ, and a summary court-martial for violation of Articles 92 and 107 of the UCMJ.  While all of his offenses were apparently alcohol related, the Board found no evidence in the record to indicate that the Applicant was not responsible for his behavior.  While the Applicant should have been also processed for discharge on the basis of alcohol rehabilitation failure, the Board found that the Applicant was not prejudiced by this error.  The Applicant was afforded appropriate treatment for his alcohol abuse problem, and his discharge for misconduct was suspended for one year in order to provide him an opportunity to rehabilitate his performance and conduct.  His continued misconduct, together with evidence in the record indicating that the Applicant desired having his suspended discharge vacated, warranted separation.  

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.

Summary of Service

Prior Service:
Inactive: USMCR (DEP)  20030512 - 20031020  	Active:   

Period of Service Under Review:
Date of Enlistment:  20031021	Years Contracted:   	Date of Discharge:  20051105
Length of Service:  2  Yrs  0  Mths  15  Dys  (does not exclude lost time)  Lost Time: Days UA:  2 Days Confinement:  24
	
Education Level:  	Age at this Enlistment:  		AFQT:  74	MOS:  6311	Highest Rank:  PFC
Proficiency/Conduct marks (# of occasions):  3.3(6)/2.9(6)	Fitness reports available for review?   

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

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20040331:	NJP for violation UCMJ, Article 134 (Spec 1: 20040303 give alcohol to PFC L_ and PFC L_, minors; Spec 2:  20040319, incapacitated for duty due to overindulgence in intoxicating liquor).  Award:  FOP $596.00 for 2 months, Rest 60 days, RIR to E-1.

20040507:	Naval Hospital, Pensacola, FL.  Completed alcohol abuse treatment, begun 20040423, this date.
	Discharge Diagnosis: Alcohol abuse.  Applicant completed the formal portion of the treatment program.
	Recommendation:  Prescribed aftercare program.	

20040610:	NJP for violation(s) UCMJ, Article 92 (Spec 1: 20040515 disobey written order by consuming alcoholic beverages while on restriction; Spec 2: 20040515 disobey written order by going beyond restriction limits).
	Award:  FOP $250.00 for 2 months, Rest 60 days.

20040610:	MARCORSEPMAN para 6105 counseling for pattern of misconduct and failure to obey a lawful order. 

20040716:	Pensacola Naval Hospital for mental health evaluation for self-inflicted cigarette burn on arm.
	Applicant indicates he has a problem with drinking.  He would like to attend Level III treatment.  Applicant indicates that he was not forthcoming when he was evaluated by SARP and diagnosed with alcohol abuse.
	Assessment: Alcohol dependence.
	Recommendation:  Abstain from alcohol, attend aftercare, follow up with mental health as needed.

20040729:	Summary Court-Martial.
	Charge I: Violation UCMJ, Article 92, 20040614, fail to obey a lawful order.
	Charge II: Violation UCMJ, Article 107, 20040619, make a false official statement to GySgt K. C. S_.
	Finding: Guilty.  Sentence: FOP $795.00, confinement 30 days.
	CA action 20040802:  Sentence approved and ordered executed.

20040729:	MARCORSEPMAN para 6105 advising being processed for administrative discharge action.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20050104
Basis for Discharge:				 DUE TO:  
Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20050105
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (20050407)
SJA review (date):				 (20050816)
Separation Authority (date):	CG, TRAINING COMMAND, QUANTICO, VA (20060909)
	Basis for discharge directed:		 DUE TO:  
	Characterization directed:			
	Discharge suspended:			FOR ONE YEAR FROM 20060909 UNLESS SOONER VACATED.

20051025:  	Suspension vacated, due to continued misconduct (alleged violations of Articles 86 (3 specs), 89 and 92).  Applicant notified on 20051011 of intended recommendation for vacation and waived opportunity to rebut.

Date Applicant Discharged:			20051105

Additional Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)       

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 
01 September 2001 until Present. 

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.

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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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