ex-, USMC
MD07-00712

 Current Discharge and Applicant’s Request

Application Received:  20070502 	Characterization Received:  
Narrative Reason:  MISCONDUCT 	Authority:  MARCORSEPMAN 6210.3

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Re-enlist
			2. Not treated for alcohol problem
			3. Post service conduct (sobriety)

Decision

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

Date:  20071212		Location:  Washington D.C.	 Representation:  

Discussion

Issue 1:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Issue 2 (). The Applicant essentially implies that his misconduct was the result of his alcohol abuse problem and should be mitigated by a failure to be provided adequate alcohol rehabilitation treatment.  The Applicant’s record clearly documents the Applicant’s long history of alcohol abuse, and also the extensive medical treatment provided to him in an effort to assist him with the problem and to treat him for the physical injuries he suffered as a result.  The NDRB recognizes that serving in the Marine Corps is very challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his alcohol abuse, or that he was not responsible for his conduct or should not be held accountable for his actions.  

Issue 3 (). 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 could 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.  The Applicant claims that he has been sober for approximately 2 years, and the NDRB commends him on his effort; however, as of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.

Issue 4 (Propriety).  Although not raised by the Applicant, the Board noted that the paperwork associated with the Applicant’s proposed administrative separation contained at least a clerical error, which error suggested the possibility of a processing error.  The Applicant was initially notified of, and acknowledged and elected his rights to, separation on the basis of misconduct due to commission of a serious offense.  His Commanding Officer forwarded his recommendation for separation on that basis on 20020305, and it was endorsed by the Applicant’s chain of command.  Before the Separation Authority acted on that recommendation, the Applicant’s Commanding Officer signed a second notification of proposed separation on the basis of misconduct due to a pattern of misconduct on 20020327.  There is no evidence in the record to show that the Applicant was notified of, or acknowledged, this second notification, although presumably he was and did.  His Commanding Officer forwarded another recommendation for separation, dated 20020327 (the same day as the second notification), on the basis of misconduct due to a pattern of misconduct.  This second notification was also endorsed by the Applicant’s chain of command.  Ultimately, the Separation Authority took action and approved separation on the basis of misconduct due to a pattern of misconduct; however, in doing so he referred to the Commanding Officer’s first recommendation of 20020305.  There is no indication in the record what, if any, action the Separation Authority took on the recommendation for separation on the basis of misconduct due to commission of a serious offense.  The Board noted that the Applicant was clearly on notice that he was facing separation on the basis of his misconduct, and that the record clearly demonstrates that both misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct were factually supported.  The Board also noted that a pattern of misconduct is arguably a less severe basis for separation than commission of a serious offense.  Therefore, after carefully considering the entire record, the Board determined that whether or not the evidence indicated mere clerical error or a procedural failure to provide the Applicant with notice of separation on the basis of misconduct due to a pattern of misconduct, the Applicant was in no way prejudiced.  

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that  

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 960725 UNTIL 000816”
	  “NONE”
	
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19960307 - 19960714  		Active:   	19960715 - 20000816  
Period of Service Under Review:
Date of Enlistment: 20000817				Years Contracted:  		Date of Discharge:  20020513
Length of Service:  01  Yrs  08  Mths  27  Dys		Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  41	MOS:  0331/9916  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.2(6)/3.9(6)			Fitness reports:   
Awards and Decorations (per DD 214):  GCM, SSDR, JMUA, Rifle , Pistol MM

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

20010202:	Page 11 Service Record counseling for violation of School of Infantry order to not physically handle student.  

20010529:	NJP -- Viol UCMJ Art. 128 - Assault Private First Class then performing duties as sentry.
	Awarded - FOP ($692.00) for (2 months); RIR (E-3); Restr for (30 days).

20010529:	MARCORSEPMAN 6105 counseling for assault on a camp guard sentry.

20010906:	Applicant admitted to Intensive Outpatient alcohol treatment.  

20010921:	Applicant discharged from Intensive Outpatient alcohol treatment as Minimally Successful Treatment with a poor prognosis based upon lack of effort to actively address identified treatment issues and unstable personal life which has proven to be an added stress in life.  Discharge diagnosis:  Alcohol dependence.  Continuing care recommendation:  Weekly SACO visits, 3 AA meetings weekly for 12 months, attend continuing care, anger and stress management to be scheduled by CMD SACO.

20020111:	SCM -- Viol UCMJ Art. 86 - Absent from field day formation 20011101; Art. 89 - Disrespectful in deportment towards Captain 20011206; Art. 90 - Willfully disobeyed Captain 20011206; Art. 91 (2 specs) – Disrespectful in deportment towards Sergeant 20011206 and Disrespectful in language toward Gunnery Sergeant 20011105; Art. 92 (4 specs) – Disobey order from Gunnery Sergeant 20011105, Fail to deliver personal ammunition to organizational Commander 20010919, Failed to deliver privately owned firearm to organizational Commander 20010919, and Fraternizing with Marine in a student status 20011102; Art. 117 - Provoking words towards Sergeant 20011206; Art. 128 - Assault Corporal 20011105; Art. 134 - Drunk and disorderly 20011105.
	Awarded -  FOP ($736.00) for (1 month); RIR (E-1); Confinement (30 days).
	CA action:  20020116, approved, confinement suspended 3 months.

20011101:	Applicant signed Statement of Understanding of Treatment for Substance Abuse at a VA Medical Center.

Discharge Process

Date Notified:	20020305
Basis for Discharge:	 DUE TO:  
	
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20020305
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

20020305:	Applicant requested voluntary leave awaiting administrative separation.  Commanding Officer endorsed, forwarding recommending approval.

Commanding Officer Recommendation (date):	 (20020305)

20020315:	Commanding Officer, School of Infantry, approved voluntary leave request.

20020321:	Commanding Officer, School of Infantry, endorsed recommendation for administrative separation, concurring with the recommendation for separation on the basis of misconduct due to commission of a serious offense and alcohol rehabilitation treatment failure, and recommended discharge under other than honorable conditions.

20020327:	Commanding Officer, signs new notification of proposed administrative separation.
Date Notified:	NOT FOUND IN RECORD
Basis for Discharge:	 DUE TO  
	
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	
Date Applicant Responded to Notification:		NOT FOUND IN RECORD
Commanding Officer Recommendation (date):	 (20020327)

20020410:	Commanding Officer, School of Infantry, endorsed recommendation for administrative separation of “05 Mar 02”, concurring with the recommendation for separation on the basis of misconduct due to pattern of misconduct and alcohol rehabilitation treatment failure, and recommended discharge under other than honorable conditions.
	
SJA review (date):	 (20020417)
Separation Authority (date):	CG, MARINE CORPS BASE, CAMP LEJEUNE (20020430) by endorsement to recommendation of “05 Mar 02”
              Basis for discharge directed:	 DUE TO:  
              Characterization directed:	
Date Applicant Discharged:	20020513 (NDRB note:  Applicant signed DD 214)

Types of 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 
1 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.

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, Articles 89, Disrespect toward a superior commissioned officer; 90, Assaulting or willfully disobeying superior commissioned officer; 91, Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer; 92, Failure to obey order or regulation; and 128, Assault.

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