ex-CAPT, USMC
MD07-00793

Current Discharge and Applicant’s Request

Application Received:  20070511 	Characterization Received:  
Narrative Reason:  UNACCEPTABLE CONDUCT 	Authority:  MARCORSEPMAN 4102 & secnavINST 1920.6B

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1.  Change discharge code.
2.  Military service opportunities.  
			3.  Board of Inquiry made improper findings.
4.  Inadequate military medical treatment for alcoholism.
			5.  Post service.

Decision

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

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

Discussion

Issue(s) 1 - 2:   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 3 (Propriety).  The Applicant contends that the Board of Inquiry made improper findings.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue.  Neither the evidence in the record, nor evidence submitted by the Applicant supports the contention that the Board of Inquiry acted improperly.  Reviews and recommendations were conducted at the Marine Air Wing, Marine Expeditionary Force, Marine Corps Forces Atlantic, and Commandant of the Marine Corps levels before being confirmed by the Assistant Secretary of the Navy (Manpower and Reserve Affairs).  Additionally, two reviews were completed at the request of the Applicant by the Military Law Branch, Judge Advocate Division.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.    

Issue 4 (Equity).  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct.  The Applicant implies that she was treated unfairly by her unit.  Again, the government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant has not produced any evidence to support the contention that the command unfairly singled her out or did not respond to her medical needs.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  

Issue 5 (Equity).  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 documentation of post-service accomplishments other than her statement.  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 an alcohol free existence, and certification of non-involvement with civil authorities.  The Board determined that the Applicant’s post service conduct did not mitigate the misconduct that resulted in the characterization of discharge.   

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  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19811024 - 19811116  		
Active:   19811117 - 19850917  
	19850918 - 19880809  
	19890831 - 19900517  
Period of Service Under Review:
Date of Commission: 19910518	Years Contracted:  INDEF  Date of Discharge:  20020510
Length of Service:  10  Yrs  11  Mths  23  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  16	Age at Commission:  27	MOS:  0402         Highest Rank:  Captain
Fitness reports:   
Awards and Decorations (per DD 214):  NMCAM, JSCM, HSM, SSDR x 2, NDSM x2, JMUA, CERT COMM x 4, LOA x 4

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

19910518:	Applicant Commissioned as a 2nd Lieutenant.

19951001:	Applicant promoted to Captain.

19980331:	Alcohol related incident.  [Extracted from CG, Marine Corps Air Ground Combat Center letter of 19980909.]

199805XX:	Applicant completed Alcohol Rehabilitation.  [Extracted from CG, Marine Corps Air Ground Combat Center letter of 19980909.]

19980902:	NJP -- Viol UCMJ Art. 112 – Drunk on Duty 19980812.
	Awarded – FOP $1000 per month for two months (forfeitures in excess of $100 per month was suspended for 6 months) and Punitive Letter of Reprimand. 

19980903:	Applicant issued Punitive Letter of Reprimand.

19980914:	Applicant responded to Punitive Letter of Reprimand.

19980919:	Commanding General, Marine Corps Air Ground Combat Center, submitted Report of  with enclosed comments from Applicant.  The letter further recommended that the Applicant be required to show cause for retention.

20010330:	Applicant completed Outpatient Treatment for alcohol dependency.  

20010330:	Applicant arrested in Carteret County, North Carolina for DWI.  [Extracted from Commandant’s letter of 20020211.]

20010615:	Commander, U.S. Marine Corps Forces, Atlantic directed the Applicant to show cause for retention.  [Extracted from Commandant’s letter of 20020211.]

20010718:	Counseling:  Advised of deficiencies in performance and conduct for DWI test refusal on 20010330 and subsequently classified as “alcohol rehabilitation failure” by a Naval Medical Officer from the Substance Abuse Counseling Center, MCAS Cherry Point.  Advised being considered for administrative separation.

20010731:	Board of Inquiry convened at Marine Corps Air Station, Cherry Point, NC.  

20010829:	Board of Inquiry report recommended that Applicant be separated from the naval service with characterization of service as 

20011003:	Commanding General, 2nd Marine Aircraft Wing forwards Board of Inquiry report recommending general (under honorable conditions). 

20011024:	Commanding General, II Marine Expeditionary Force forwards Board of Inquiry report recommending general (under honorable conditions). 

20011129:	Commander, U.S. Marine Corps Forces, Atlantic forwards Board of Inquiry report recommending general (under honorable conditions). 

20020211:	Commandant of the Marine Corps recommended to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) that  with characterization of service as general (under honorable conditions). 

20020402:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s discharge by reason of involuntary discharge - unacceptable conduct, with characterization of service as general (under honorable conditions).

20020510:	Applicant discharged this date.

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)  BCNR Petition

Pertinent Regulation/Law

A.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until 14 December 2005 establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

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.

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