DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

 ex-LCpl, USMCR
Docket No. MD04-01144

Applicant’s Request

The application for discharge review was received on 20040707.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/ALCOHOL REHABILITATION FAILURE, authority: MARCORSEPMAN Par. 6209.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“ To whom it may concern,
Sir or Madame I would like an upgrade of my discharge if possible, I will do any thing it takes and hopefully be able to get an re entry code updated and available. I believe in the USA and LOVE the Marine Corp and would do any thing for country and fellow servicemen Semper Fi, I am trying to and will keep on trying to serve my country.  I made minor mistake 8 years ago with been late & alcohol related, please look and give me chance,
sincerely S_C_
Semper Fi”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Copy of Certificate of Good Conduct, dtd 15 June 1997
Copy of letter from T_A_R_, dtd December 18, 2001
Copy of letter from J_S_, dtd April 9,2002
Copy of letter from M_T_C_, dtd 19 November 1992
Letter of character reference from J_L_M_, dtd 9 August 2004
Copy of DD-214 Member-4
Copy of DFAS Statement, dtd 1 Jan 1997
Copy of Letter of Appreciation, Nevada Highway Patrol, dtd June 5, 1997

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USMCR		010788 – 100389	ELS - Uncharacterized
	Active:   None

Period of Service Under Review:

Date of Enlistment:  900518		Date of Discharge:  981102

Length of Service (years, months, days):

	Active:    02  05  15
	Inactive:  None

Age at Entry:  22			Years Contracted:  8

Education Level:  12			AFQT:  50

Highest Rank:  Cpl			MOS:  0451

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (14)			Conduct:  4.4 (14)

Military Decorations:  None

Unit/Campaign/Service Awards:  HSM, MUC, SMCRM, GCM, NDSM, RSB

Days of Unauthorized Absence:  None 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER HONORABLE CONDITIONS/ALCOHOL REHABILITATION FAILURE, authority:  MARCORSEPMAN Par. 6209.

Chronological Listing of Significant Service Events:

960123:	Assigned to active duty for 36 months, with PEBD of 900518 and EAS of 990421.

960917:	Counseled for deficiencies in performance and conduct. [Counseled for an alcohol related incident.  Specifically, exercising lack of judgment and self-discipline by consuming too much alcohol rendering me [Applicant] unable to perform my duties as an NCO in a timely and professional manner.  This act has caused me to be relieved of my duties as a parachute rigger and reassigned within the unit.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

960923:	Commander Naval Base, San Diego, Alcohol Evaluation ICO Cpl S_J_C_ [Applicant]. Applicant was evaluated on 960919 following referral by SACO due to reporting late with alcohol on his breath.  Applicant was returned to his command the same day following satisfactory participation in the evaluation.  Applicant appears to be an alcohol abuser as evidenced by this incident, a 1992 arrest for public intoxication, and an arrest on 960705 for damaging an ATM machine.  Applicant is recommended to attend a Level II treatment program.  With the recommended program he shows fair potential for further service, however without rehabilitation his potential for future abuse is high.  Upon completion of treatment, his performance should be reevaluated and any further incident be handled in accordance with OPNAVINST 5350.4B. 

961011:	Applicant successfully completed Level II care at CAAC/NADSAP, NAS Lemore, CA.

970311:	Counseled for deficiencies in performance and conduct.  [Counseled this date concerning my personal finances.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.   

970318:	Counseled for deficiencies in performance and conduct.  [Counseled this date concerning an alcohol related incident.  Specifically, exercising lack of judgment and self-discipline by consuming alcohol after successfully completing Level II.  This action is also affecting your [Applicant’s] ability to remain financially responsible. Specifically, your expenses are exceeding your income causing you to be indebted to another service member.  Your conduct has affected the readiness of the airborne operations of this unit as you have been relieved of your duties in the paraloft.  You have lost the trust and confidence of your command due to your displayed lack of responsibility and maturity. ]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.   

970924:	Counseled for deficiencies in performance and conduct.  [I have been counseled this date concerning my continues use of alcohol.  I understand that I am not allowed to consume ANY amount of alcohol. My actions have affected the readiness of the airborne operations of this unit.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.   

980711:	Medical Officer evaluation of Applicant.  Medical officer concurs with the established diagnosis of recidivism with alcohol abuse.  

980728:	NJP for violation of UCMJ, Articles 86 & 91:
Did on or about 25 Jun 98, at an unknown time. Disobeyed a lawful order.   Cpl C_ was ordered not to drink any alcohol.  When questioned, he admitted to drinking the night prior.  Did on or about 26 Jun 98, showed up for work at 0830 vice the 0700 ordered time.
Awarded reduction to E-3, effective date of reduction 980728.  Forf of ½ of 1 months pay for 2 months.  Total forf $1,230.00 susp for 6 months, at which time, unless sooner vacated, the forf will be remitted w/o firther action.   Not appealed.

980807:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol rehabilitation failure. 

980807:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980807:	Commanding officer recommended discharge under other than honorable conditions by reason of alcohol rehabilitation failure.  The factual basis for this recommendation was: “LCpl C_ (Applicant) was assigned to this unit on 960422 as an Air Delivery Specialist, MOS 0451. Since that time, the following incidents have occurred: On 960917, LCpl C_ (Applicant) was the subject of a page 11 counseling for alcohol abuse and assigned to Level II treatment, which he completed on 961011. On 970318, LCpl C_ (Applicant) was counseled again concerning alcohol abuse and his failure of Level II after care. At that time, he was advised that failure to take corrective action may result in administrative separation or limitation of further service. On 970924, LCpl C_ (Applicant) was the subject of a page 11 counseling for alcohol abuse and he acknowledged that he was not to consume any amount of alcohol. On 980727, LCpl C_ (Applicant) was the subject of NJP due to violation of articles 86 and 91 of the UCMJ (alcohol related).”

981009:	SJA review determined the case sufficient in law and fact.

981009:	GCMCA, Commander Marine Forces Reserve, directed the Applicant's discharge General (under honorable conditions) by reason of alcohol rehabilitation failure.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981102 with a general (under honorable conditions) due to alcohol rehabilitation failure (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  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.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  A General 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 a nonjudicial punishment proceeding for violations of Articles 86 and 92 of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.
 
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 letters of appreciation from the FBI and the Wells Fargo Bank for his assistance in a specific incident as documentation of his post-service.  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 alcohol rehabilitation, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, relief is not warranted.  

The Applicant remains eligible for a personal appearance hearing, provided an 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 other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Marine Corps Separation and Retirement Manual, (MCO P1600.19E), effective 950818 until 010831, Paragraph 6209, ALCOHOL REHABILITATION FAILURE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

PART IV - INFORMATION FOR THE APPLICANT

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

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