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

Docket No. MD06-01129

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

ex-PFC, USMC
MD06-01129

Current Discharge and Applicant’s Request:

Application Received:  				20060828
Characterization of Service:			UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Separation:			MISCONDUCT
Discharge Authority:				MARCORSEPMAN 6210.3
Last Duty Assignment/Command at Discharge:	MARINE WING HEADQUARTERS SQUADRON-2

Applicant’s Request:	
	Characterization change to:		GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: 		NONE REQUESTED
	Review Requested:			DOCUMENTARY REVIEW
Representation:  					NONE DESIGNATED

Decision:

Date of Decision:					20070712     
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.  Improve employment opportunities.
2.  Record of service.
3.  Inequitable characterization of service.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				20020928 - 20021006	COG
Active:   NONE

Period of Service Under Review:
Date of Enlistment:  				20021007
Years Contracted:  				4;   Extension:  NONE. 
Date of Discharge:				20050908
Length of Service
	Active:					02  Yrs  11  Mths  02  Dys  (Does not exclude lost time)
	
Time Lost During This Period:			5
Days UA:  					None
Days Confinement:  				5

Education Level:  				12
Age at this Enlistment:  				21
AFQT:  						40
MOS:						0121
Highest Rank:					LANCE CORPORAL

Proficiency/Conduct marks (# of occasions):		4.3 (7) /3.8 (7)

Awards and Decorations (as listed on the DD Form 214):  GLOBAL WAR ON TERRORISM SERVICE MEDAL,  NATIONAL DEFENSE SERVICE MEDAL, RIFLE MARKSMAN BADGE

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

20030708:	Counseling:  Advised of deficiencies in performance and conduct.  Specifically; Article 86 Unauthorized Absence from section PT on 20030630, Article 91, Insubordinate conduct towards a noncommissioned officer by engaging a verbal confrontation on 20030626, Article 92, Failure to obey order or regulation on 20030626.  Necessary corrective actions explained, sources of assistance provided, and disciplinary warning issued.

20031029:	NJP for violation(s) of UCMJ:
	Article 86:  On or about 0715 on 20031017 without authority, absence himself from his appointed place of duty.
	Article 91:  On or about 0630 on 20031015 did treat a noncommissioned officer with contempt, by talking back, body and facial gestures.
	Award:  Forfeiture of $500.00 for 2 months (suspended for 4 months), awarded 16 days of CCU.
	Not appealed.

20031124:	NJP for violation(s) of UCMJ:
	Article 86:  On or about 0715 on 20031108 without authority, absence himself from his appointed place of duty.
	Award:  Reduction to E-2, restriction and extra duty for 45 days (suspended for 4 months).

20040630:	Counseling:  Advised of deficiencies in performance and conduct.  Violation of Article 86, on or about 1800, 040625 to 2015 040625 failed to check in off leave at the prescribed time and place, in addition you also failed to report in to execute a scheduled PFT.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20040730:	Counseling:  Advised of deficiencies in performance and conduct.  A pattern of misconduct and minor disciplinary infractions.  Necessary corrective actions explained, sources of assistance provided, and disciplinary and discharge warning issued.

20050408:	Summary Court-Martial
	Charge: Violation of the UCMJ, Article 86.
	Specification 1: In That Lance Corporal M_ D. S_, U. S. Marine Corps, Marine Wing Headquarters Squadron 2, did, on board Marine Corps Air Station, Cherry Point, on or about 20041025, without authority, fail to go at the time prescribed to his appointed place of duty, to wit:   Consolidated Personnel Administration Center Bldg 298.
	Specification 2: In That Lance Corporal M_ D. S_, U. S. Marine Corps, Marine Wing Headquarters Squadron 2, did, on board Marine Corps Air Station, Cherry Point, on or about 0600, 20041027, without authority, absent himself from his place of duty at which he was required to be, to wit:  Station PFT course located on board Marine Corps Air Station, Cherry Point, North Carolina and did remain so absent until on or about 0830, 041027.
	Finding: To Charge I and the specification thereunder, guilty.
	Sentence: Forfeiture 2/3 of pay per month for 1 month, reduction to E-2.
	CA action UNDATED:  Sentence approved and ordered executed.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20050628
Basis for Discharge:				MISCONDUCT SPECIFICALLY 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:		20050628
Rights Elected at Notification:
Consult with Counsel				ELECTED
Obtain Copies	  				ELECTED
Submit Statement(s) (date)				ELECTED  (20050628)
Administrative Board				WAIVED

Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS (20050628)
SJA review (date):				SUFFICIENT IN LAW AND FACT  (20050901)
Separation Authority (date):		COMMANDING GENERAL, 2D MARINE AIRCRAFT WING                                                               (20050901)
Narrative Reason directed:				MISCONDUCT DUE TO PATTERN OF MISCONDUCT
Characterization directed:				UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:			20050908

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:				21
	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:		4
        Other Documentation (Describe Below)			0

        Total Number of Pages:				25

 
Applicant’s Issues, as summarized by the Board:
1.  Improve employment opportunities.
2.  Record of service.
3.  Inequitable characterization of 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 the Addendum regarding this issue. 

Decisional Issues:
The Board accepted Issues 2-3 for consideration.   

Issue 2 (Equity).  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 service during the current period of service, which forms the primary basis for determining the character of his service was marred by one retention warnings and two nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ) Articles 86, Unauthorized absence and 91, Insubordinate conduct, and one Summary Court Martial for two specifications of violations of Article 86.  Violation of Article 91 is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to general (under honorable conditions) would be inappropriate.  Relief denied. 

Issue 3 (Equity).  In order to be processed for administrative separation for misconduct due to a pattern of  misconduct, a minimum of two incidents occurring within one enlistment is required.  The infractions may be minor or more serious.  There must be discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline. The misconduct need not have been the subject of NJP or military or civilian conviction.  Such incidents include an established pattern of minor unauthorized absences.  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.  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 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 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 violations of the UCMJ, Article 89, Disrespect toward a commissioned officer, Article 123a, Checks insufficient funds, and Article 128, Assault upon a noncommissioned. 

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