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

  ex-LCpl, USMC
Docket No. MD04-01392

Applicant’s Request

The application for discharge review was received on 20040902.  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 listed Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050428.  After a thorough review of the available 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:

1. “In 1997 my mother passed away.  I became a bad alcoholic.  I got a DUI on base, and that’s what probably woke me up.  I went through numerous counseling’s PREVENT 2000 which is documented in my SRB and the attached copy of my DD Form 214.  I completed a program prescribed by SACO.  Then I went to sea on a West PAC.  I had the problem licked.  I was doing great.  I was in fact, after we returned back to Camp Pendleton, told by a Master SGT that I had no problem anymore. That I was good to go.  Then when the unit turned over command.  The new command insisted I continue to go to these meetings.  They refused to give me good PROs and CON marks.  Which in turn caused me not to get promoted.  It drove me back to drinking again.  I refused to take the prescribed pills to keep me from drinking and was moved to 3RD Battalion 1ST Marines awaiting discharge.  I did very well during my brief stay with that unit, and I wanted to stay with that unit.  I was told that I was already being processed out by my previous unit 1ST Battalion 1ST Marines.  The Marine Corps was my life and it was taken from me.  I loved the Corps, and think I at least deserve an honorable discharge.  I would like to return to the Marine Corps, but it is almost impossible with the discharge I received.  I trust the board will make the right choice, and grant my request.”       	

Additional issues submitted by Applicant’s counsel (DISABLED AMERICAN VETERANS):

2.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of  the evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General under honorable conditions.

The FSM served on active service from June 3, 1996 to July 23, 1999 at which time he was discharged due to Alcohol Rehabilitation Failure..  

The FSM contends the current discharge is improper because he had completed the program that was prescribed by SACO.  He contends that he no longer had a drinking problem and his status was confirmed by his Master SGT.  He further contends that the new incoming commander had insisted that he continue to go to the meetings, and administratively refused to give him good Pros and Con marks.  
The FSM believes that these actions provoked the old drinking behavior.  

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper.  The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted.  See, SECNAVIST 5420.174 D, Sect.  407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.   These issues do not supersede any issues previously submitted by the applicant.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		950612 - 960602	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  960603		Date of Discharge:  990723

Length of Service (years, months, days):

	Active:    03  01  21
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  47

Highest Rank:  LCpl			MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (8)			Conduct:  3.9 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSDR, NUCR

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

970507:	NJP for violation of UCMJ, Article 111: At “C” Co, 1ST Bn, 1ST Mar, on or about 0045, 970427, stopped by military police for drunk reckless driving; violation of UCMJ Article 134: At “C” Co, 1ST Bn, 1ST Mar, on or about 0045, 970427, disobey the Bn CDR’s policy on alcohol by driving under the influence of alcohol.
	Award:  Restriction and extra duty for 14 days.  No indication of appeal in the record.

970530:	Counseled for deficiencies in performance and conduct.  [Failure to comply with the UCMJ.  On 970427 SNM was arrested for DUI.  Failure to comply with the Battalion Commanders policy on underage drinking.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

980716:	Not recommended for promotion to CPL for the month of Aug 98 because of maturity.

980810:	Medical evaluation by CSACC indicates alcohol dependence.  Pre-service waiver indicated.

980813:	Not recommended for promotion to CPL for the month of Sep 98 because of maturity.

9811x8:	Not recommended for promotion to CPL for the month/quarter, Dec 98 promotion period because of bad judgment.

981208:	Counseled for deficiencies in performance and conduct.  [At Camp Wilson MCAGCC 29 Palms, violated article 134 in that SNM was drunk and disorderly.  SNM urinated in the A-frame and on other Marines equipment and belongings.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

981222:	Not recommended for promotion to CPL for the month/quarter, Jan 99 promotion period because of maturity.  	

990216:	Medical evaluation by CSACC indicates alcohol dependence, recommended for expeditious processing for administrative separation.  Recommend 3-5 AA meetings/week and command supervised antibuse.

990315:	NJP for violation of UCMJ, Article 86: Did at Charlie Co. 1stBn, 1stMar, 1stMarDiv on 990309, fail to go to appointed place of duty, to wit: company training; violation of UCMJ, Article 92: Did at Charlie Co. 1stBn, 1stMar, 1stMarDiv on 990309 fail to follow a direct order to train.
Awarded forfeiture of $275.00 pay per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

990316:	Not recommended for promotion to CPL for the month/quarter, Apr 99 promotion period because of disobeying a direct order.  	

990407:	Counseled for deficiencies in performance and conduct.  [Failure to comply with the UCMJ.  You have been in numerous alcohol related incidents.  You recently disobeyed a lawful order to report to your appointed place of duty (the 53 area rappel tower) for fast rope operation]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

990723:	Applicant discharged with general (under honorable conditions) character of service by reason of alcohol abuse rehabilitation failure [Extracted from DD Form 214, authority: MARCORSEPMAN, par 6209].

Discharge package not contained in service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990723 with a general (under honorable conditions) character of service due to alcohol rehabilitation failure (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).    

Issues 1-2.  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 three retention warnings and two nonjudicial punishment proceedings for violations of Articles 86, 92, 111 and 134 of the UCMJ.  In addition, the record shows no adjudication for the Applicant’s two additional infractions of the UCMJ for violations of Article 134 and Article 92.  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 Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that he was driven “back to drinking again” because his command “refused to give [him good PRO] and CON marks” and therefore he could not get promoted.  While he may feel that his alcohol rehabilitation failure can be attributed to his failure to be promoted, the record clearly reflects his rehabilitation failure and willful misconduct.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 should 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.  As of this time, the Applicant has not provided any documentation for the Board to consider.  

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.  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 V, Para 502, Propriety.

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

D.  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.  

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