Docket No. 9639-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER , XXX-XX, USMC Ref: (a) 10 U.S.C. § 1552 (b) USD Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” 25 July 2018 Encl: (1) DD Form 149 with attachments (2) Non-Judicial Punishment (NJP) Records (3) Administrative Discharge Notification and Acknowledgment of Rights (4) Commanding Officer’s (CO) Recommendation (5) Staff Judge Advocate Memorandum (6) Discharge Approval 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Marine Corps, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting that his characterization of service be upgraded. 2. The Board reviewed Petitioner's allegations of error and injustice on 26 August 2020 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval records, and applicable statutes, regulations and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Although enclosure (1) was not filed in a timely manner, it is in the interest of justice to waive the statute limitation and review Petitioner’s application on its merits. c. Petitioner enlisted in the Marine Corps and began a period of active duty on 10 February 1988. d. Between 13 February 1989 and 25 May 1990, Petitioner received NJP on five separate occasions. Specifically, Petitioner was punished for disobeying a superior noncommissioned officer, breaking restriction by being drunk and disorderly outside the limits of his NJP-imposed restriction, unauthorized absence, wrongful use of a controlled substance, and violating an order by possessing alcoholic beverages in the Bachelor Enlisted Quarters. (Enclosure (2)). e. By memorandum dated 16 November 1990, Petitioner was notified that he was being recommended for separation from the Marine Corps due to a pattern of misconduct and drug abuse. On 19 November 1990, after acknowledging his rights and consulting with military defense counsel, Petitioner waived his right to a hearing before an administrative discharge board. (Enclosure (3)). f. By memorandum dated 29 November 1990, Petitioner’s CO recommended that Petitioner be discharged from the Marine Corps under other than honorable (OTH) conditions. The CO indicated that the command’s attempts to treat Petitioner’s substance abuse has been unsuccessful due to his uncooperative attitude and continuing misconduct. The memorandum also indicated that Petitioner did not deploy to Operation Desert Shield / Desert Storm in order to process his administrative discharge. (Enclosure (4)). g. By memorandum dated 12 December 1990, the separation authority directed Petitioner’s administrative discharge by reason of a pattern of misconduct and that his service be characterized as OTH. On 16 January 1991, Petitioner was discharged from under OTH conditions. (Enclosure (5)). h. Petitioner asserts that drinking was a big part of his life in the Marine Corps. He was prescribed with Antabuse (alcoholism medication) following an incident, but it never occurred to him at the time that he had a problem with alcohol. He was ordered to attend in-patient alcohol rehabilitation, but missed the flight due to an unannounced change in the flight schedule. When he returned to his assigned base, he was informed that he would have to confront a court-martial and jail time in order to stay in the Marine Corps or get an early release under OTH conditions. Since he was unable to deploy with his company and threatened with jail time, he signed the paperwork to accept his OTH without a hearing. He claims that he did not have adequate knowledge of his rights or legal representation. i. Since his administrative discharge, Petitioner obtained an Associate’s degree in 1999 and has been a Registered Nurse ever since then. Most of his nursing career has been in emergency medical care. He recently obtained Bachelor’s degree in nursing, and it presently furthering his career as an Advanced Nurse Practitioner. He and his wife are raising three children in . MAJORITY CONCLUSION: Upon review and careful consideration of all the evidence of record, the Majority concludes that Petitioner’s request warrants relief. The Majority found no error or injustice in Petitioner’s original discharge or in the characterization of service. The Majority noted that Petitioner’s pattern of misconduct warranted both his administrative separation and his OTH characterization of service. It also found no evidence to suggest that Petitioner’s administrative separation under OTH conditions was improperly processed. In addition to reviewing Petitioner’s case for error or injustice, the Board also considered the Petitioner’s case under the guidance provided by reference (b) to determine whether equitable relief is appropriate under the circumstances. In this regard, the Majority considered, among other factors, the Petitioner’s post-service record of accomplishments and conduct, including his educational accomplishments and service in the health care field; his ongoing efforts to overcome his alcohol addiction; and his relative youth at the time of the misconduct which resulted in his OTH discharge. Based upon these considerations, the Majority determined that the misconduct which resulted in Petitioner’s OTH discharge was adequately mitigated and that equitable relief was appropriate under the circumstances. The Majority recommended that Petitioner’s characterization of service be upgraded to general (under honorable conditions). The Majority did not believe an upgrade of Petitioner’s characterization of service to honorable to be appropriate due to the nature of the misconduct which resulted in his discharge. MAJORITY RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action: That Petitioner be issued a new DD Form 214 indicating he was discharged from the Marine Corps on 16 January 1991 with a characterization of service of “general (under honorable conditions).” That no further changes be made to Petitioner’s record. That a copy of this report of proceedings be filed in Petitioner’s naval service record. That, upon request, the Department of Veterans Affairs be informed that Petitioner's application was received by the Board on 4 October 2019. MINORITY CONCLUSION: Like the Majority, the Minority of the Board found no error or injustice in the original discharge or characterization of Petitioner’s service. Contrary to the Majority, the Minority found that equitable relief was not appropriate under the circumstances. It also considered all of the potentially mitigating circumstances under the guidance of reference (b), but determined that they were not sufficient to warrant relief. Specifically, the Minority felt Petitioner’s repeated misconduct, to including a continuation of his pre-service drug use,2 and his failure to deploy to Southwest Asia with his unit during a wartime setting, outweighed any potentially mitigating circumstances. 2 The Minority noted that the Staff Judge Advocate recommendation, dated 10 December 1990, revealed that Petitioner required a waiver to enter the Marine Corps due to pre-service drug use. (Enclosure (5)). The Minority also did not believe that Petitioner adequately accepted responsibility for his misconduct. In this regard, the Minority noted that Petitioner’s statement finds fault for his failure to complete his service in “signing documents that [he] was subjected [sic]” and with his chain of command for “not consider[ing] options that could have enabled [Petitioner] to shine and remain the outstanding marine that [he] had put a great amount of effort toward.” In this regard, the Minority noted that the Petitioner received NJP five different times, but failed to adjust his behavior, and that he was uncooperative when it came to the substance abuse rehabilitation that was directed by his command. Accordingly, the Minority felt that relief was not appropriate under the circumstances. MINORITY RECOMMENDATION: That no change be made to Petitioner’s record. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in this matter. 5. The foregoing action of the Board is submitted for your review and action. Assistant General Counsel (Manpower and Reserve Affairs) Reviewed, Approved Board Majority Recommendation (Grant Relief) or Reviewed, Approved Board Minority Recommendation (Deny Relief) 12//22/2020