Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. MD07-00239

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

ex-PFC, USMC
MD07-00239

Current Discharge and Applicant’s Request

Application Received:  20061211 	Characterization Received:  GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason:  PATTERN OF MISCONDUCT 		Authority:  MARCORSEPMAN 6210.3

Applicant’s Request:	Characterization change to:  HONORABLE  
			Narrative Reason change to: NONE REQUESTED
Applicant’s Issues:	1.  Reenlist.
			2.  Educational opportunities.
			3.  Post service.

Decision

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).	
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Date:  20071002         Location:  Washington D.C.     The Board found that the discharge was proper and equitable.

Issue(s) 1-2:  The Board determined that these Issue(s) are not issue(s) 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. 

Issue 3 (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, or good conduct 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 no documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing.  For example, the Applicant could have produced evidence of a verifiable and continuous employment record, documentation of community service, educational pursuits, 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 discharge.   

The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  There is credible evidence in the record that the Applicant committed a pattern of misconduct.  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.  A general (under 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 was marred by three discharge warnings and two nonjudicial punishments for violating the UCMJ Article(s) 86 Unauthorized absence, 92 Failure to obey order, regulation, 107 False official statements, and 134 Indecent exposure.  Violations of Article(s) 92, 107, and 134 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.

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20010914 - 20020121  COG	
Period of Service Under Review:
Date of Enlistment: 20020122		Years Contracted:  4	Date of Discharge:  20060106
Length of Service:  03  Yrs  11  Mths  15  Dys	Lost Time:  Days UA:  NONE  Days Confined:  NONE
Education Level:  12	Age at Enlistment:  17 (PARENTAL CONSENT)	AFQT:  41	MOS:  3521  Highest Rank:  LANCE CORPORAL
Proficiency/Conduct marks (4.0/3.7)	 
Awards and Decorations (per DD 214):  GLOBAL WAR ON TERRORISM SERVICE MEDAL, MARINE CORPS GOOD CONDUCT MEDAL, NAVY UNIT COMMENDATION, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, IRAQ CAMPAIGN MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NATIONAL DEFENSE SERVICE MEDAL, NAVY MERITORIOUS UNIT COMMENDATION, PRESIDENTIAL UNIT CITATION-NAVY, RIFLE SHARPSHOOTER BADGE

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

20050526:	MARCORSEPMAN 6105 counseling for violation of Article 91: Disobedience of a lawful order from a noncommissioned officer, and Article 92:  Failure to obey order or regulation.  Discharge warning issued.   Applicant refused to sign.

20050526:	MARCORSEPMAN 6105 counseling for violation of Article 91: Insubordinate conduct towards an NCO and violation of Article 134: Indecent exposure.  Discharge warning issued.  Applicant refused to sign.

20050608:	MARCORSEPMAN 6105 counseling for knowingly and willfully disobeyed instructions from MSgt L_ on or about 20050602.  In that he went directly to the II MEF Inspector General’s office with a request mast form without properly utilizing his chain of command.

20050608:	MARCORSEPMAN 6105 counseling:  SNM was counseled and personally ordered by the II MHG commander Col L_ in a counseling session that he was to utilize his own chain of command or appropriate legal action would result.  SNM knowingly and willfully disregarded Col L_ in that he sought to request mast through the Base Inspector General.

20051015:	CO's NJP -- Viol UCMJ Art. 86 - UA (2 days).
	Awarded - - FOP ($200.00) for (1 month); Restr for (14 days); Extra duties (14 days).  FOP suspended for 3 months.

20051102:	MARCORSEPMAN 6105 counseling for failing to follow simple instruction in proper cleaning techniques, failed to show proper respect towards a noncommissioned officer, and failed to understand the basic principle of authority by not complying to the directions of a noncommissioned officer.

20051117:	CO's NJP -- Viol UCMJ Art. 134 - Indecent exposure, Art. 107 (2 specs) - (1) False official statement against Lt. L_, False official statement, in that SNM had Sports Medicine receptionist make a false document for an appointment that did not exist, Art. 92 - Failure to obey order or regulation, Art. 86 - Absence without leave
	Awarded - - FOP ($346.00) for (2 months); RIR (E-2); Restr for (30 days); Extra duties (30 days).  FOP suspended for 6 months.

20051121:	MARCORSEPMAN 6105 counseling for recently found in violation of Art. 134, 107 x 2, 92 and 86 at a Group NJP on 20051117.  Discharge warning issued.  

20051208:	MARCORSEPMAN 6105 counseling for failure to conform to standards and processing for administrative separation.  Specifically, in November 2005, you went to the Group Personnel Administration Center and proceeded to disrespect a noncommissioned officer by verbally assaulting and threatening the NCO with words to the effect of “I’m going to punch him in his mouth.”  Advised being processed for administrative separation.  

20051213:	MARCORSEPMAN 6105 counseling for Article 86, UA and Article 92, failure to obey an order.  

Discharge Process

Date Notified:	UNREADABLE
Basis for Discharge:	MISCONDUCT DUE TO A PATTERN OF MISCONDUCT
Least Favorable Characterization:	GENERAL (UNDER HONORABLE CONDITIONS)
Commanding Officer’s Intended Recommendation:	GENERAL (UNDER HONORABLE CONDITIONS)

Date Applicant Responded to Notification:		20051213
Rights Elected at Notification:
	Consult with Counsel			ELECTED
	Obtain Copies of Documents		ELECTED
	Submit Statement(s) (date)			ELECTED  (20051219)
	Administrative Board			NOT APPLICABLE

Commanding Officer Recommendation (date):	GENERAL (UNDER HONORABLE CONDITIONS) (20051219)
SJA review (date):	SUFFICIENT IN LAW AND FACT (20051229)
Separation Authority (date):	COMMANDING GENERAL, II MARINE EXPEDITIONARY FORCE (20051229)
              Basis for discharge directed:	MISCONDUCT DUE TO:  A PATTERN OF MISCONDUCT
              Characterization directed:	GENERAL (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:	20060106

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  ☒		Other Records:  ☐

Related to Post-Service Period:  	
	Employment:  		☐	Finances:  		☐	Education: 		☐
	Health/Medical Records:  	☐	Substance Abuse:		☐	Criminal Records:  	☐
	Family/Personal Status: 	☐	Community Service:  	☐	References:  		☐
	
Additional Statements From Applicant:  ☐	From Representative:  ☐  
Other Documentation (Describe) ☐      

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 
01 September 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(s) 92, 107, and 134.

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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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