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

Docket No. MD06-01215

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

ex-Pvt, USMC
MD06-01215

Current Discharge and Applicant’s Request:

Application Received:  				2060908
	Characterization of Service:		UNDER OTHER THAN HONORABLE CONDITIONS
	Basis for Discharge:			MISCONDUCT
	Discharge Authority:			MARCORSEPMAN 6210.5
	Duty Assignment/Command at Discharge:	sctybn mcb campen ca

Applicant’s Request:
	Characterization change to:		HONORABLE
	Narrative Reason change to: 		NONE REQUESTED
	Review Requested:			DOCUMENTARY REVIEW
	Representation:  				NONE DESIGNATED
	Issues (as summarized by NDRB):		
1.  Reenlistment opportunity.
2.  Educational benefits.  
3.  Post service.		

Decision:

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.	
By a vote of 5-0 the Basis for Discharge shall remain MISCONDUCT.

Date of Decision:					20070830	
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

Issues 1-2:  The Board determined that these Issues are not issues 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 these issues. 

Issue 3 (Equity):  The NDRB is authorized to consider post-service factors in deciding whether to re-characterize a discharge.  However, there is no law or regulation providing 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.   Ordinarily, the NDRB must find that a procedural impropriety or inequity existed during the period of enlistment in question before it can grant relief.  Outstanding post-service conduct is considered by the NDRB 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.  The Applicant provided two character reference letters as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing to be compelling.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of the discharge.

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions.  However, when significant negative aspects of a member’s conduct outweigh the positive aspects of the member’s military record, an under other than honorable conditions characterization is warranted.  The Applicant’s conduct during his period of Marine Corps service, which forms the primary basis for determining the character of his service, was marred by one discharge warning, one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 92, Failure to obey order, regulation, and one conviction at a Summary Court-Martial for violation of Art 112a, Wrongful use of a controlled substance.  A violation of either Article 92 or Article 112a is considered a serious offense, for which a punitive (Bad Conduct or Dishonorable) discharge is authorized if adjudged by a Special or General Court-Martial.  An upgrade to Honorable  would be inappropriate.  

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				20000706 - 20000813  COG

Period of Service Under Review:
Date of Enlistment:  				20000814
Years Contracted:  				4
Date of Discharge:				20020325
Length of Service
	Active:					1  Yrs  7  Mths  12  Dys  (does not exclude lost time)
	Inactive:					0  Yrs  0  Mths  0  Dys
	Time Lost During This Period:		Days UA:  NONE  Days Confinement:  8

Education Level:  				12
Age at this Enlistment:  				17 (PARENTAL CONSENT)
AFQT:  						44
MOS:						3381
Highest Rank:					PRIVATE FIRST CLASS
Proficiency/Conduct marks (# of occasions):		4.3 (6)/4.2(6)

Awards and Decorations (as listed on the DD Form 214):  RIFLE SHARPSHOOTER BADGE

Service Record Entries Related to Characterization of Service or Basis for Discharge

20000705:	Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs.

20010227:	NJP for violation(s) of UCMJ:
	Article 92:  On or about 2001022, present in PFC L_’s POV which is in direct violation of the DetO P3000.1K.
	Award:  Forfeiture of $521.00 for 1 month, correction for 30 days, reduction to E-1  Appealed:  020302.  Appeal of forfeiture and reduction was disapproved.

20010227:	Counseling:  Advised of deficiencies in performance and conduct.  Violation of  Article  92.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20020313:	Summary Court-Martial.
	Charge: Violation of the UCMJ, Article 112a.
	Specification:  On or about 20020122 to 20020203, wrongfully use marijuana.
	Finding: To Charge and the specification, guilty.
	Sentence: Forfeiture of $737.00, confinement for 10 days, reduction to E-1.
	CA action 20020325:  Sentence approved and ordered executed.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20020313
Basis for Discharge:				MISCONDUCT DUE TO DRUG ABUSE
Least Favorable Characterization:			UNDER OTHER THAN HONORABLE CONDITIONS
Commanding Officer’s Intended Recommendation:	UNDER OTHER THAN HONORABLE CONDITIONS

Date Applicant Responded to Notification:		20020317
Rights Elected at Notification:
	Consult with Counsel			ELECTED
	Obtain Copies of Documents		ELECTED
	Submit Statement(s) (date)			WAIVED
	Administrative Board			WAIVED

Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS (20020314)
SJA review (date):				SUFFICIENT IN LAW AND FACT (20020321)
Separation Authority (date):	COMMANDING GENERAL, MARINE CORPS BASE, CAMP PENDLETON (20020322)
	Basis for discharge directed:		MISCONDUCT (DRUG ABUSE)
	Characterization directed:			UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:			20020325

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				7
       
Related to Period of Service Under Review:
	From Service and/or Medical Record:	☒	Other Records:	☐

Related to Other Period(s) of Service:
	From Service and/or Medical Record:	☐	Other Records:	☐
       
Related to Post-Service Period:
	Employment:				☐	Finances:	☐
	Health/Medical Records:			☐	Substance Abuse:	☐
	Family/Personal Status:			☐	Education:	☐
 	Community Service Efforts:		☐	References:	☒
	Criminal Records:			☐

Other:
	Additional Statements From Applicant:	☐	From Representative:	☐
        	Other Documentation (Describe)		☒ Picture of applicant and two other Marines
						      Applicant’s biography

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual,  (MCO P1900.16F), effective 01 September 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 violation of the UCMJ, Article 92 and 112a.

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