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

Docket No. MD06-01043

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

ex-PFC, USMC
MD006-01043

Current Discharge and Applicant’s Request:

Application Received:  				20060807
Narrative Reason for Separation:			IN LIEU OF TRIAL BY COURT-MARTIAL
Character of Service:				UNDER OTHER THAN HONORABLE CONDITIONS
Discharge Authority:				MARCORSEPMAN 6419
Last Duty Assignment/Command at Discharge:	2DTSBN 2DFSSG USMARFORLANT

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

Decision:

Date of Decision:					20070614
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			NO
Complete Discharge Package:			NO
Regarding propriety, the Board found the discharge:	PROPER
Regarding equity, the Board found the discharge:	EQUITABLE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS
By a vote of 5-0 the Narrative Reason shall remain IN LIEU OF TRIAL BY COURT-MARTIAL

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				20000426 - 20000905 COG
Active:   NONE
Period of Service Under Review:
Date of Enlistment:  				20000906
Years Contracted:  				4;  NO EXTENSION      
Date of Discharge:				20020726
Length of Service:				01  Yrs  10  Mos  21  Days

Does not exclude lost time, if any.

Time Lost During This Period:			46
Days Unauthorized Absence:			46
Days Confinement:				NONE  

Education Level:  				12
Age at this Enlistment:  				18
AFQT:  						32
MOS:						3531
Highest Rate/Rank:				PFC

Performance Evaluation Averages (number of marks):
Proficiency:					NONE FOUND
Conduct:					NONE FOUND

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL, RIFLE MARKSMANSHIP BADGE

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

20010717:	Applicant to unauthorized absence at 0530.

20010718:	Applicant from unauthorized absence at 0730.

20010731:	NJP for violation(s) of UCMJ:
	Article 86:  UA from 0530, 20010717 to 0730, 20010718 without prior authority absence himself from his appointed place of duty (1 day).
	Award:  Forfeiture of $300 for 2 months, restriction and extra duty for 45 days.  Forfeiture for 1 month suspended for 6 months.
	Not appealed.

20010808:	Counseling:  Advised of deficiencies in performance and conduct: violation of Articles 86 and 92 of the UCMJ, in that SNM disobeyed the restriction guidelines set forth by the Commanding Officer by failing to muster at the prescribed time for his restriction check-in.  Necessary corrective actions explained, sources of assistance provided.

20011203:	Forfeiture of pay awarded at NJP on 20010817 vacated.

20020107:	Counseling:  Advised of deficiencies in performance and conduct: Applicant has displayed a pattern of misconduct.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20011116:	Applicant to unauthorized absence at 1700.

20011117:	Applicant from unauthorized absence at 0930.

20011221:	NJP for violation(s) of UCMJ:
	Article 86:  UA from 1700, 20011116 to 0930, 20011117.
	Award:  Forfeiture of $300 for 1 month, restriction and extra duty for 45 days.  Forfeiture for 1 month, restriction and extra duty for 23 days suspended for 6 months.
	Not appealed.

20020318:	Applicant to unauthorized absence at 0630.

20020418:	Applicant declared a deserter.

20020429:	Applicant from unauthorized absence (deserter status) at 0300 (42 days/surrendered).

20020715:	Applicant to unauthorized absence at 0630.

20020717:	Applicant from unauthorized absence at 0130.

20020723:	NJP for violation(s) of UCMJ:
	Article 86:  UA during the period of 0630 on 20020715 until 0130 on 20020717 (1 day).
	Award:  Forfeiture of $276 for 1 month, restriction and extra duty for 45 days, reduction to E-1.  Forfeiture, restriction and extra duty suspended.
	Not appealed.

Elements of Discharge  [REQUESTED BY MEMBER]

Discharge Process:
Date Member Requested Separation:			20020607
Member Requested Separation Due To:			NOT IN RECORD
Characterization Requested:				NOT IN RECORD
member Recognized Least Favorable:			NOT IN RECORD
Recommendation of Commanding Officer (date):		NOT IN RECORD
SJA review (date):					YES  (20020702)
Discharge directed by (date):	COMMANDING GENERAL, 2D FORCE SERVICE SUPPORT GROUP (20020709)
Narrative reason directed:					SEPARATION IN LIEU OF TRIAL
Characterization directed:					UNDER OTHER THAN HONORABLE CONDITIONS)
Date Applicant discharged:				20020726

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:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				3

       Description of Other Documentation:

Applicant’s Issues, as summarized by the Board:
1.  Post service employment opportunities.
2.  General hardships while in the Marine Corps caused my behavior problems.

Issue 1:  The Board determined that this Issue is not an issue which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding this issue. 
	
Decisional Issues:
The Board accepted Issue 2 for consideration.

Issue 2 (Equity)  In the absence of a complete discharge package, the Board presumed regularity of governmental affairs.  As such, the Board presumed that the Applicant requested discharge to escape trial by court-martial; that the Applicant had the elements of the offense for which he was charged fully explained by counsel; that the Applicant admitted guilt to the offense; and that the Applicant had a complete understanding of the negative consequences of his actions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  

Issue 2 (Equity)  The Applicant contends that his problems in the Marine Corps can be attributed general hardships.  While he may feel that his actions were the underlying cause of his misconduct, the record clearly reflects his willful and continuous 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.

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.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Minority Opinion

None

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 2001 until Present, Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

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 86, Absence without leave, More than 30 days..

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