Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. MD06-01024

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

ex-PFC, USMC
MD06-01024

Current Discharge and Applicant’s Request:

Application Received:  				20060728
Narrative Reason for Separation:			MISCONDUCT
Character of Service:				GENERAL (UNDER HONORABLE CONDITIONS)
Discharge Authority:				MARCORSEPMAN 6210.3
Last Duty Assignment/Command at Discharge:	HEADQUARTERS AND HEADQUARTERS SQUADRON, MCAS CHERRY POINT

Applicant’s Request:
	Narrative Reason change to: 		NONE REQUESTED     
	Characterization change to:		HONORABLE
	Review Requested:			DOCUMENTARY REVIEW
Representation:  					NONE DESIGNATED

Decision:

Date of Decision:					20070628
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			YES
Complete Discharge Package:			YES
Regarding propriety, the Board found the discharge:	IMPROPER
Regarding equity, the Board found the discharge:	INEQUITABLE

By a vote of 4-1 the Characterization shall change to HONORABLE
By a vote of 4-1 the Narrative Reason shall change to COMPLETION OF REQUIRED ACTIVE SERVICE                                                                                                                                       

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				19991228 - 20000820 COG
Active:   NONE
Period of Service Under Review:
Date of Enlistment:  				20000821
Years Contracted:  				5; 1 MONTH EXTENSION
Date of Discharge:				20050920
Length of Service:				05  Yrs  01  Mos  00  Days

Does not exclude lost time, if any.

Time Lost During This Period:			NONE

Education Level:  				12
Age at this Enlistment:  				19
AFQT:  						65
MOS:						6336
Highest Rate/Rank:				SGT

Performance Evaluation Averages (number of marks):
Proficiency:					4.4 (11)
Conduct:					4.2 (11)

Fitness reports were available to the board for review for service as E-5/Sergeant or higher:  YES 

Awards and Decorations (as listed on the DD Form 214):
MARINE CORPS GOOD CONDUCT MEDAL, SEA SERVICE DEPLOYMENT RIBBON (2^ND AWARD), GLOBAL WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL, NAVY UNIT COMMENDATION, RIFLE EXPERT BADGE (4^TH AWARD), PISTOL SHARPSHOOTER BADGE AND LETTER OF APPRECIATION

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20031230:	NJP for violation(s) of UCMJ:
	Article 86:  Absence without leave.
	Article 92:  Failure to obey order or regulation.
	Article 134:  Drunkenness incapacitation for the performance of duties.
	Award:  Forfeiture of $832 for 2 months, restriction and extra duty for 45 days, reduction to E-4.  Forfeiture, restriction and extra duty suspended.
	Not appealed.

20031230:	Counseling:  Advised of deficiencies in performance and conduct.  Your nonjudicial punishment awarded 20031230.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20040402:	Forfeiture of pay, restriction and extra duty awarded at NJP on 20031203 vacated due to violation of Article 107 on or about 20040317.

20040901:	Counseling:  Advised of deficiencies in performance and conduct.  Your failure to follow an order and malingering on 20040717.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20041103:	NJP for violation(s) of UCMJ:
	Article 92:  Failure to obey an order on 20041006.
	Article 86:  Unauthorized absence on 20041026.
	Award:  Forfeiture of $703 for 2 months, restriction for 30 days, reduction to E-3.  Forfeiture for 1 month suspended.
	Appealed:  20041109.  Appeal denied:  20041202.

20041103:	Counseling:  Advised of deficiencies in performance and conduct.  Your nonjudicial punishment held on 20041103 for violations of the UCMJ, Article 86 and Article 92.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20050108:	Forfeiture of pay awarded at NJP on 20041103 vacated.

20050203:	NJP for violation(s) of UCMJ:
	Article 92 (3 specs):
	Specification 1:  Departed barracks 431 without signing the Liberty Log Book on 20050107.
	Specification 2:  Departed MCAS Futenma without a Liberty Buddy at Okinawa Japan on 20050107.
	Specification 3:  Wrongfully remained on off base liberty between the hours of 2400 and 0500 on 20050107.
	Award:  Forfeiture of $692 for 2 months, restriction and extra duty for 45 days, reduction to E-2.  Forfeiture suspended for 6 months.
	Not appealed.

20050203:	Counseling:  Advised of deficiencies in performance and conduct.  Your nonjudicial punishment held on 20050203.  Necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

Elements of Discharge:  [INVOLUNTARY]

FIRST Package
Discharge Process:				Administrative Board Procedure
Date Notified:					20050102
Basis for Discharge:				MISCONDUCT DUE TO A PATTERN OF MISCONDUCT

Least Favorable Characterization:			UNDER OTHER THAN HONORABLE CONDITIONS
Commanding Officer’s Intended Recommendation:	GENERAL (UNDER HONORABLE CONDITIONS)
Record Supports Narrative Reason:			YES
Date Applicant Responded to Notification:		20050104
Rights Elected at Notification:
Consult with Counsel			ELECTED
Administrative Board			ELECTED
Obtain Copies	  			ELECTED
Submit Statement(s)			WAIVED
Recommendation of Commanding Officer (date)	GENERAL (UNDER HONORABLE CONDITIONS) 20050127

SECOND Package
Date Notified:					20050422
Basis for Discharge:				MISCONDUCT DUE TO A PATTERN OF MISCONDUCT

Least Favorable Characterization:			UNDER OTHER THAN HONORABLE CONDITIONS
Commanding Officer’s Intended Recommendation:	UNDER OTHER THAN HONORABLE CONDITIONS
Record Supports Narrative Reason:			YES
Date Applicant Responded to Notification:		20050426
Rights Elected at Notification:
Consult with Counsel			ELECTED
Administrative Board			ELECTED
Obtain Copies	  			ELECTED
Submit Statement(s)			WAIVED

Administrative Board Date:			20050630
Findings and Recommendations:			
Basis for Discharge Supported:			PATTERN OF MISCONDUCT; YES ; Vote:  3 TO 0
Separation Warranted:				YES; Vote:  3 TO 0
Recommendation Regarding Separation:		YES; WITHOUT SUSPENSION
Recommendation Regarding Characterization:	GENERAL (UNDER HONORABLE CONDITIONS); Vote:  3 TO 0

Recommendation of Commanding Officer (date):	UNDER OTHER THAN HONORABLE CONDITIONS (20050506)
SJA review (date):				YES  (20050806)
Discharge directed by (date):			COMMANDING GENERAL (20060806)
Narrative reason directed:				MISCONDUCT DUE TO A PATTERN OF MISCONDUCT
Characterization directed:				GENERAL (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:			20050920

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				3
	Other Period of Service:				6
       Related to Post-Service Period:
	Community Service:				0
	Education:					8
	Employment:					0
	Health/Medical:					0
	Character Statements:				1
	Criminal Records Checks:				0
	Additional Statements from Applicant:		9
        Other Documentation	 (Describe Below)		3

        Total Number of Pages:				30

       Description of Other Documentation:
       Stars and Stripes newspaper articles on sporting event participation

Applicant’s Issues, as summarized by the Board:
1.  Improper discipline and improper administrative separation procedures.

Decisional Issues:
The Board accepted Issue 1 for consideration.

Issue 1 (Propriety/Equity).  The Applicant implies that he was improperly disciplined for an offense.  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 his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the command unfairly singled him out for discipline.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  

The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  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.  The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, evidence submitted by the Applicant, and circumstances unique to this case.  A particular circumstance of interest was the apparent enlistment extension for one month.  This extension was clearly initiated by the command to allow for further time for administrative discharge proceedings.  The NDRB noted that there were improprieties in the Applicant’s discharge action, is convinced that this procedural error was prejudicial to the Applicant, and therefore an inequity in the characterization of the Applicant’s service did occur.  Relief approved 

Minority Opinion

None

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 2001 until Present, Paragraph 1004, CHARACTERIZATION OF SERVICE.

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.

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.  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