ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080923
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20011003 - 20020127  	Active:	

Period of Service Under Review:
Date of Enlistment:  20020128	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20060120	Highest Rank:  
Length of Service:    Years    Months   23  Days
Education Level:  	AFQT:  44
MOS:  6216
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	    CG CoC LoA

Periods of UA:     SCM:    CC:  

NJP:  
- 20050312:  Article 92 (Failure to obey a lawful order by drinking and driving)
                      Awarded:     Suspended:  

SPCM: 1
- 20051201:  Article 111 (Drunken operation of a vehicle)
                    Sentence:  CONF FOR 6 MONTHS (20051201-20051220 (20 days)), FOP, RIR TO E-1

Retention Warning Counseling:  
- 20050314:  For alcohol-related incident, specifically DUI (.10 BAC).  This is your fourth alcohol related incident in 
                      this enlistment, and the first after intensive outpatient care.

- 20050315:  For misconduct, specifically my recent conviction at NJP for violation of Article 92 held on 20050312

- 20050429:  For alcohol rehabilitation failure.  Specifically, on or about 20050317 you were reevaluated and found to 
                      be a “Rehabilitation Treatment Failure” due to continued use of alcohol and alcohol related incident while  
                      in an aftercare status.

Types of Documents Submitted/reviewed

Related to Military Service: 
              
		            DD 214:  	 Service/Medical Record:                             Other Records:  

Types of Documents Submitted/reviewed (cont)

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	

Related to Post-Service Period (cont):	
	Family/Personal Status: 		Community Service:  		References:  		
              Additional Statements: 
              From Applicant’s Family:  	From Representation:         	From Congress member:    

                    Other Documentation:   Death Certificate, Obituary

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:  Article 92 and Article 111.

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

Applicant’s Issues

1.  Upgrade discharge and change separation code; member required a more intensive alcohol abuse rehabilitation program.
2.  Post-service conduct.

Decision

Date:  20090212		Location: Washington D.C.	 Representation: 

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

Discussion

The former military service member’s parents obtained the services of a civilian counsel who is requesting a discharge upgrade to “Honorable” and a corresponding change to the separation code:  The member was involved in a fatal automobile accident before he could finish the effort of correcting his military record himself.  The Board sends its sincere condolences to the family and acknowledges this request is an important issue to the member’s family and counsel.  Although requests by families or civilian counsel to upgrade the characterization of a deceased service member are infrequent, they are not unique.  The Board reviews these cases as if the Applicant was still living and in an objective manner, but takes into consideration certain documentation may not be available or reasonable to obtain.

:  (Equity)  .   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’s family.  The member’s record of service was marred by one NJP for violation of the Uniform Code of Military Justice (UCMJ):  Article 92 (Failure to obey a lawful order by drinking and driving) and one SPCM for violation of Article 111 (Drunken operation of a vehicle).  These are considered serious offenses which could have resulted in a punitive discharge if adjudicated and awarded as part of a sentence by a special or general court martial.  The command did not award a punitive discharge at the special court martial, but opted instead for an administrative discharge. 

The service member had a history of alcohol incidents, including a pre-service admission to being cited for underage drinking.  A review of the member’s service record indicated he had the following six alcohol related incidents: (1) June 2006, Okinawa – no legal or administrative action taken; (2) May 2004, MCAS Cherry Point, Havelock bar – no legal or administrative action taken; (3) August 2004, MCAS Cherry Point, while in town – counseled; (4) November 2004, MCAS Cherry Point, convulsions in barracks – counseled; (5) March 2005, MCAS Cherry Point, arrested for DUI in Carteret County – NJP; and (6) October 2005, MCAS Cherry Point, drunken operation of a vehicle – Special Court Martial.  After the member’s fourth alcohol-related incident, he was interviewed by a certified substance abuse counselor and diagnosed by a medical doctor of alcohol abuse on 18 November 2004.  
(Note:  The Applicant was not diagnosed as alcohol dependent which would have qualified him for Level III treatment, a residential rehabilitation program.  Level III is designed for those members who have been formally evaluated and diagnosed as alcohol dependent and who require rehabilitation on a full-time, live-in basis.  They must, in the opinion of their commanding officer, show potential for continued naval service.)

The member was subsequently enrolled into a Level II Intensive Outpatient & Early Intervention Program and completed the program on 20 January 2005, with scheduled follow-on programmed aftercare.  Unfortunately, the Applicant failed the program aftercare when he was again involved in an alcohol-related incident (referenced above as incident 5).  The Applicant was reevaluated on 15 March 2005 by a certified counselor and on 17 March 2005 a medical doctor determined the Applicant was “a Rehabilitation Treatment Failure” due to the continued use of alcohol and continued alcohol related incidents while in an aftercare status.”  For the edification of counsel and family, any Marine who fails to successfully complete treatment is subject to administrative separation.  Following his second alcohol abuse evaluation, the Applicant was involved in another alcohol incident (referenced above as incident 6) and subsequently given a SPCM.  The command “lost all trust and confidence” in the Applicant and correctly processed him for involuntary administrative separation for his pattern of misconduct due to lack of potential for continued naval service. 

While the family may feel the member required a greater level alcohol abuse treatment program, the member was provided adequate treatment for the level of abuse he was diagnosed with at the time of his misconduct.  During treatment members are provided with recommendations to assist them from returning to alcohol in times of boredom or crisis.  Additionally, members are assigned an aftercare program to help assist them in their recovery.  All members of the program must at some time assume responsibility for their actions and have the internal desire to remove alcohol from their life.  Unfortunately, not all graduates of the rehabilitation program succeed in this endeavor.  In these cases commanders use their best judgment for the greater good of the military service and their command’s mission and safety.  In this particular case it was determined the best course of action was to administratively process the member for discharge without further attempts at rehabilitation.  It was noted in the member’s discharge medical evaluation the doctor suggested follow-on counseling for alcohol dependency as a result of the member’s increased addiction to alcohol. 

The Board determined the awarded discharge characterization and separation code were appropriate considering the frequency and nature of the offenses committed; an upgrade and change would be inappropriate.

Issue 2:  ()  .   The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides 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.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the member’s
performance and conduct during the period of service under review, is considered during Board reviews.  Documentation to help support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage 
and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attending or completion of higher education (official transcripts) and documentation 
of alcohol non-dependency and a drug-free lifestyle.  Counsel, and the member’s family, is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

The Board applauds the member for taking responsibility for his actions and his initial efforts to remove the blemish against his service record.  Acknowledging responsibility and maintaining a steady job are positive first steps.   However, before the Applicant could take even greater steps forward he met with a fatal accident.  Unfortunately, to warrant an upgrade, the member’s post-service efforts needed to be more complete to support an upgrade.  Counsel was only able to provide character references to document his client’s post-service efforts at this time.  The Board notes that more than half of the references were written before the member’s fatal car accident indicating to the Board he was working to document post-service improvements.  
While there is no way of knowing how complete his post-service efforts would have become, at the time of his death there was not sufficient documentation of such efforts to warrant a discharge upgrade.   

The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved.  The Board acknowledges the limitations on both counsel and family at this time in providing post service documentation however, based on the limited post-service documentation provided an upgrade would be inappropriate.

Counsel and the member’s family remain eligible for a personal appearance hearing on behalf of the member, provided an application is received at the NDRB within 15 years from the date of discharge.  Should additional evidence or post service documentation become available the family may wish to apply for a personal appearance on behalf of their son .  There are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members or their families, in their efforts to obtain a discharge upgrade.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Records, Discharge Process and evidence submitted by the Applicant’s family, the Board found the discharge was proper and equitable.

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 or is referred to a court-martial 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 other medical related reasons.”  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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