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

Docket No. MD06-01122

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

ex-PVT, USMC
MD06-01122

Current Discharge and Applicant’s Request:

Application Received:  				20060822     
Characterization of Service:			UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Separation:			MISCONDUCT
Discharge Authority:				MARCORSEPMAN PAR 6210.3
Last Duty Assignment/Command at Discharge:	VMGR-252 MAG-14 2DMAW

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

Decision:

Date of Decision:					20070706
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 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT                                                                                                                                                                                                                                                          

Applicant’s Issues, as summarized by the Board:
1.  Immaturity at time of service.  
2.  Post service.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				20010316-20010319 COG

Period of Service Under Review:
Date of Enlistment:  				20010319     
Years Contracted:  				4;   Extension:  NONE. 
Date of Discharge:				20030131
Length of Service
	Active:					01  Yrs  10  Mths  12  Dys  (Does not exclude lost time)	 
Time Lost During This Period:			
	
Education Level:  				10
Age at this Enlistment:  				18
AFQT:  						54
MOS:						0431
Highest Rank:					PFC

Proficiency/Conduct marks (# of occasions):		4.3 (4)/3.7 (4)

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

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

20011106:	NJP for violation(s) of UCMJ:
	Article 92: Did on or about 20011106, violate a lawful general order, to wit: ABO 1746.2A Ch 1 of 19950517, by consuming alcohol under the age of 21.
	Award:  Forfeiture of $521.00 for 2 months (suspended for 6 months), restriction and extra duty for 30 days, reduction to E-1 (suspended for 6 months).
	Not appealed.

20001130:	Counseling:  Advised of deficiencies in performance and conduct.  While entering the main gate of MCAS Cherry Point, SNM was found in violating the base regulation of drinking under age.  Necessary corrective actions explained, sources of assistance provided.

20001130:	Counseling:  Advised of deficiencies in performance and conduct.  SNM was ticketed in Beaufort County, N.C. for speeding 70 mph in a 35 mph zone.  Adjudicated in civilian court; 30 days in jail suspended for twelve months.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20020613:	NJP for violation(s) of UCMJ:
	Article 92: Did on or about 20020606 fail to obey a lawful general order, to wit: MCO P10 of 19950607, by wrongfully wearing an earring as an active duty member of the U.S. Marine Corps.
	Award:  Forfeiture of $511.00 for 2 months (suspended), restriction and extra duty for 45 days, reduction to E-1.
	Not appealed.

20020617:	Counseling:  Advised of deficiencies in performance and conduct.  SNM violated Art 92 of the UCMJ by wearing earrings while on liberty.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20020722:	NJP for violation(s) of UCMJ:
	Article 86: Did on or about 20020711, without authority, absent himself from his appointed place of duty and did remain so until 0930, 20020711.
	Article 92: Having knowledge of a lawful order issues by LT Col H_ on 20020711, fail to obey the same by failing to report in at 0645 to the Squadron Duty Officer.
	Award:  Forfeiture of $511.00 for 2 months, restriction and extra duty for 45 days.
	Appealed.  Appeal denied on 20020822.

20020722:	Counseling:  Advised of deficiencies in performance and conduct.  SNM violated Art 92 of the UCMJ by failing to sign in at 0645 while on restrictions.  SNM also violated Art 86 of the UCMJ by not checking into work until 0930 on the same day.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20020926:	NJP for violation(s) of UCMJ:
	Article 92: On or about 20020922, disobeyed a verbal order by wrongfully driving his POV on a suspended civilian license.
	Article 92: On or about 20020922, failed to obey a lawful written order by wrongfully driving his POV on a suspended civilian license.
	Award:  Forfeiture of $511.00 for 2 months, restriction and extra duty for 45 days.
	Not appealed.

20021113:	Counseling:  Advised of deficiencies in performance and conduct.  SNM violated articles 92x2 UCMJ and this was the fourth NJP during this enlistment.  Necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				Notification Procedure
Date Notified:					20021003
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:		20021003
Rights Elected at Notification:
Consult with Counsel				ELECTED
Obtain Copies	  				ELECTED
Submit Statement(s) (date)				WAIVED
Administrative Board				ELECTED THAN WAIVED ON 20030107

Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS (20021003)
SJA review (date):				YES (20030311)
Separation Authority (date):			COMMANDING GENERAL, 2D MARINE AIRCRAFT WING 							(20030311)
Narrative Reason directed:				MISCONDUCT DUE TO A PATTERN OF MISCONDUCT
Characterization directed:				UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:			20030131

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:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation (Describe Below)			4

        Total Number of Pages:				4

       Description of Other Documentation:
Completion Certificate Leadership 101 Management Training Program April 25-27, 2006, 
Completion Certificate of Management Trainng Program dated May 26, 2006, 
Management Training Development Feedback Form 

Applicant’s Issues, as summarized by the Board:
1.  Immaturity at time of service.  
2.  Post service.

Decisional Issues:
The Board accepted Issues 1-2 for consideration.   

Issue 1 (Equity).  The Applicant contends that his problems were attributed to his immaturity.  While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  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.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An under other than honorable conditions 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 conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by the award of three retention warnings and four nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ), Articles 86 and 92.  Violations of UCMJ Article 92 is considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.  Relief denied. 

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 documentation of employment training courses as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing.  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.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.

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 violations of the UCMJ, Article 92, Failure to obey an order.

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