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

Docket No. MD06-01193

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

ex-PVT, USMC
MD06-01193

Current Discharge and Applicant’s Request:

Application Received:  				20060713
Characterization of Service:			UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Separation:			MISCONDUCT
Discharge Authority:				MARCORSEPMAN 6210.3
Last Duty Assignment/Command at Discharge:	HQBN MAGTFTC 29 PALMS CA 92278

Applicant’s Request:	
	Characterization change to:		HONORABLE
	Narrative Reason change to: 		NONE REQUESTED
	Review Requested:			PERSONAL APPEARANCE HEARING *
Representation:  					NONE DESIGNATED

Applicant’s issues:
1. Employment enhancement – Equity
2. In service – Equity

*After receiving a negative reply to NDRB letter of 20060717, Applicant’s case was changed to a documentary review.

Decision:

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.

Date of Decision:					20070809
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

Issue 1: The Board determined that this issue is not an issue which can form the basis of relief for the Applicant, or that the
Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the
Addendum regarding this Issue.

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 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 one nonjudicial punishment (NJP) for a violation of the Uniform Code of Military Justice (UCMJ), Articles 123, Forgery with intent to defraud, a summary courts martial hearing for violation of UCMJ Articles 92, failure to obey lawful order, 107, intent to deceive, 134, wrongfully possess, with intent to deceive, a military identification card, he then well knowing the same to be false. A violation of UCMJ Article 92, failure to obey a lawful order, 123, forgery with intent to defraud and 134, wrongfully possess, with the intent to deceive, a military identification card, he then well knowing the same to be false, are 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
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.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				20031220-20040215 COG
Active:   NONE		               		

Period of Service Under Review:
Date of Enlistment:  				20040216
Years Contracted:  				4;   Extension:  NONE. 
Date of Discharge:				20050914
Length of Service
	Active:					01  Yrs  06  Mths  16  Dys  (Does not exclude lost time)
	Inactive:					    Yrs      Mths      Dys  
Time Lost During This Period:			?  	Days UA:  None 	 Days Confinement:  None
	
Education Level:  				12
Age at this Enlistment:  				18
AFQT:  						68
MOS:						0151
Highest Rank:					PRIVATE FIRST CLASS

Proficiency/Conduct marks (# of occasions):		4.1 (4)/3.7 (4)

Fitness reports available for review 		NOT APPLICABLE 

Awards and Decorations (as listed on the DD Form 214):	RIFLE MARKSMAN BADGE, GLOBAL WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL, LETTER OF APPRECIATION (4) 

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

20050225:	NJP for violation(s) of UCMJ:
	Article 123: Did on or about 20050111-20050113 with intent to defraud, sign an Armed Forces Dependent Identification Card.
	Award:  Forfeiture of $617.00 for 2 months(s), restriction and extra duty for 45 days (30 days restriction suspended for 6 months), reduction to E-1 (suspended for 6 months).
	Not appealed.

20050225:	Counseling:  Advised of deficiencies in performance and conduct (Recent battalion NJP concerning the following misconduct, specifically, violation of Article 123 of the UCMJ in that I did on or about between 20050111-20050113, with intent to defraud, sign an Armed Forces Dependent Identification Card.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20050628:	Reduction in pay grade and restriction awarded at NJP on 20050225 vacated due to continued misconduct.

20050721: 	Summary Court-Martial.
Charge I: Violation of the UCMJ, Article 92.
Specification: On or about 20050709 fail to obey a lawful order by wrongfully leaving his billeting without authorization
Charge II: Violation of the UCMJ, Article 107:
Specification: Did on or about 20050624, with intent to deceive, make Cpl B M. C_, U.S. Marine Corps, a Military Police Officer in execution of his duties, an official statement, to wit: he was a dependent with an active duty sponsor, which statement was totally false.
Charge III: Violation of the UCMJ, Article 134: (3 specifications)
Specification 1: Did on or about 20041230, wrongfully possess, with intent to deceive, a military identification card, he then well knowing the same to be false.
Specification 2: Did on or about 20050112, wrongfully possess, with intent to deceive, a military identification card, he then well knowing the same to be false.
Specification 3: Did on or about 20050624, wrongfully use, with intent to deceive, a military identification card, he then well knowing the same to be false.
Finding: Not found in record.
Sentence: Confinement for 28 days, forfeiture of $761.00.
CA action 20050721: Sentence approved and ordered executed.

20050815:	Counseling: Advised of deficiencies in performance and conduct (Recent Summary Court Martial concerning the following misconduct, specifically, violation of Articles 92, 107, and 134 of the UCMJ in that I did on or about between 2004 1230-20050624, with intent to defraud, possess and use a fraudulent Military Identification Card on 3 different occasions, as well as breaking restriction on or about 20050709 by leaving my place of billeting without authorization. I did, on or about 20050624, make a false official statement to PMO by claiming to be a dependent rather than an active duty Marine. Recommendations for corrective action are: do not violate the UCMJ or federal/state/local statues, and to seek assistance, which is available through my chain of command. I understand that I am being recommended for Administrative Separation. I understand that although I am eligible, I am not recommended for promotion until the Commanding General has acted on my administrative separation. I was advised that within 5 working days after acknowledging this entry I may submit a written rebuttal which will be filed on the document side of the service record. I choose not to make such a statement.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				Notification Procedure
Date Notified:					20050817
Basis for Discharge:				MISCONDUCT  due to:  A PATTERN OF MISCONDUCT
				?  due to:  ?
				?  due to:  ?
Least Favorable Characterization:			UNDER OTHER THAN HONORABLE CONDITIONS
Commanding Officer’s Intended Recommendation:	UNDER OTHER THAN HONORABLE CONDITIONS

Date Applicant Responded to Notification:		20050817
Rights Elected at Notification:
	Consult with Counsel			WAIVED
	Obtain Copies of Documents		ELECTED
	Submit Statement(s) (date)			WAIVED  
	Administrative Board			WAIVED

Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS (20050817)
SJA review (date):				SUFFICIENT IN LAW AND FACT  (20050907)
Separation Authority (date):	COMMANDING GENERAL, MARINE AIR GROUND TASK FORCE TRAINING  (20050907)
Narrative Reason directed:				PATTERN OF MISCONDUCT
Characterization directed:				UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:			20050915

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

        Total Number of Pages:				2     

       Description of Other Documentation:
       	     

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 violation of the UCMJ, Article 92, disobeying a lawful order, 123, forgery and 134, wrongfully possess, with intent to deceive, a military identification card, he then well knowing the same to be false.

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.

Employmen/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