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

Docket No. MD06-01073

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

ex-PFC, USMC
MD06-01073

Current Discharge and Applicant’s Request:

Application Received:  				20060808
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:	MWCS28, MACG28, 2DMAW, CHERRY POINT NC

Applicant’s Request:
	Narrative Reason change to: 		NONE REQUESTED     
	Characterization change to:		GENERAL (UNDER HONORABLE CONDITIONS)
	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:	PROPER
Regarding equity, the Board found the discharge:	EQUITABLE

By a vote of 5-0the 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)				19990524 - 19990815 COG
Active:   NONE
Period of Service Under Review:
Date of Enlistment:  				19990816
Years Contracted:  				4;  NO EXTENSION      
Date of Discharge:				20010823
Length of Service:				02  Yrs  00  Mos  14  Days

Does not exclude lost time, if any.

Time Lost During This Period:			29
Days Unauthorized Absence:			NONE
Days Confinement:				29

Education Level:  				12
Age at this Enlistment:  				18
AFQT:  						39
MOS:						0612
Highest Rate/Rank:				LCPL

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

Awards and Decorations (as listed on the DD Form 214):
SEA SERVICE DEPLOYMENT RIBBON

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

20000619:	NJP for violation(s) of UCMJ:
	Article 92:  On or about 0800, 20000603, willfully violated MARCORPBASEJAPO P1100.2 by consuming alcoholic beverage underage.
	Award:  Forfeiture of $273 for 1 month, restriction and extra duty for 14 days.
	Not appealed.

20001122:	NJP for violation(s) of UCMJ:
	Article 92 (2 specifications):
	Specification 1:  On or about 2330, 2001115, willfully violated REGTO 1050 by not signing out with the duties at the Barracks.  Also knowingly became separated from his liberty buddy.
	Specification 2:  On or about 2330, 20001115, willfully violated MARCORBASEJAPO 1600.1B by consuming alcohol under the legal drinking age.
	Award:  Forfeiture of $563 for 2 months, reduction to E-2, restriction and extra duty for 45 days.
	Not appealed.

UNDATED:	Counseling:  Advised of deficiencies in performance and conduct.  On 20010604 you appeared before a civil court for a speeding ticket while wearing your utility uniform and you did not have a SNCO present at your court appearance.  Additionally, you did not notify your chain of command about your ticker or your court date.  Necessary corrective actions explained, sources of assistance provided.

20010716:	Applicant to pre-trial confinement at MCB Brig, Camp Lejeune, NC.
20010725:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  On or about 20010716, without authority, absent himself from his place of duty and did so remain absent until 1500, 20010716.  Article 134 (2 specifications):  Specification 1: On or about 20010716, wrongfully have sexual intercourse with L_ V. D_, a married woman not his wife.  Specification 2:  On or about 20010716, in the presence of a minor, willfully and wrongfully expose in an indecent manner to public view his penis and/or buttocks while having sexual intercourse.

20001128:	Counseling:  Advised of deficiencies in performance and conduct  in that you have failed to obey written and verbal orders, and failed to conduct myself in accordance with Marine Corps standards.  Violating the Regimental Liberty Policy, violating MARCORBASEJAPANO 1600.1B, and drinking alcohol underage.  I have already received a Battery nonjudicial punishment and a Regimental nonjudicial punishment for said violations.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

Elements of Discharge:  [REQUESTED BY MEMBER]

Discharge Process:
Date Member Requested Separation:			20010807
Member Requested Separation Due To:			SEPARATION IN LIEU OF TRIAL
Characterization Requested:				UNDER OTHER THAN HONORABLE CONDITIONS
member Recognized Least Favorable:			UNDER OTHER THAN HONORABLE CONDITIONS
Recommendation of Commanding Officer (date):		APPROVAL, (UNDATED)
SJA review (date):					YES  (20010813)
Discharge directed by (date):	COMMANDER, 2D MARINE AIRCRAFT WING, CHERRY POINT, NC (20010813)
Narrative reason directed:					IN LIEU OF TRIAL BY COURT MARTIAL
Characterization directed:					UNDER OTHER THAN HONORABLE CONDITIONS)
Date Applicant discharged:				20010823

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:				1
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					1
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				2

       Description of Other Documentation:

Applicant’s Issues as Summarized by the Board:
1.  Would like to receive Veteran’s Affairs benefits.
2.  Post service.

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 page one of the Addendum regarding this issue. 

Decisional Issues:
The Board accepted Issue 2 for consideration.     

Issue 2 (Equity).   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, good conduct, or favorable endorsements 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 one  statement of medical care as documentation of post-service accomplishments and health.  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, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the circumstances that resulted in the characterization of discharge.  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.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until 1 Sep 01.

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, Failure to obey order, regulation and Article 134, Adultery and Indecent exposure.  

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