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

Docket No. MD07-00359

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

ex-LCpl, USMC
MD07-00359

Current Discharge and Applicant’s Request

Application Received:  20070802	Characterization Received:  OTHER THAN HONORABLE
Narrative Reason:  IN LIEU OF TRIAL BY COURT-MARTIAL 		Authority:  MARCORSEPMAN 6419

Applicant’s Request:	Characterization change to:  HONORABLE
			Narrative Reason change to: NONE REQUESTED
Applicant’s Issues:	1. Reenlistment opportunities
			2. Discharge unjust
			3. Rank reduction unjust
			
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 IN LIEU OF TRIAL BY COURT-MARTIAL

Date:  20071011  			DOCUMENTARY REVIEW		Location:  Washington D.C.  

Discussion

Issue 1:  This is either an Issue which the Board cannot form the basis of relief for the Applicant, or one 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: (Propriety/Equity).  The Applicant contends his discharge was unjust.  The record reflects that the Applicant, with counsel consultation, requested an administrative discharge in lieu of trial by court-martial with a general (under honorable conditions) characterization of service with the understanding that an Other than honorable characterization of service was authorized.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully charged and disciplined.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

Issue 3: (Propriety/Equity).  The Applicant contends that his reduction from E-6 to E-3 was unjust.  Per the MARCORPSEPMAN 1004 (Separation in lieu of trial by courts-martial), when an enlisted Marine serving in the pay grade E-4 and above is administratively separated with an other than honorable characterization of service, the Marine shall be administratively reduced to pay grade E-3, with such reduction to become effective upon separation.  

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that the discharge was proper and equitable. 

 Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19931007 - 19931017  COG		Active:   NONE	19931018 - 19971023  HON
Active:   NONE	19971024 - 20040219  HON
Period of Service Under Review:
Date of Enlistment: 20040220		Years Contracted:  4; Extension:  NONE.	Date of Discharge:  20050302
Length of Service:  01  Yrs  00  Mths  10  Dys	Lost Time:  Days UA:  NONE  Days Confined:  NONE
Education Level:  12	Age at Enlistment:  29	AFQT:  34	MOS:  0681  Highest Rank:  STAFF SERGEANT
Proficiency/Conduct marks (# of occasions):		Fitness reports:  AVAILABLE 
Awards and Decorations (per DD 214):  MARINE CORPS GOOD CONDUCT MEDAL (x3), NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (x2), GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON (x6), NATIONAL DEFENSE SERVICE MEDAL (x2), PRESIDENTIAL UNIT COMMENDATION-NAVY, NAVY MERITORIOUS UNIT COMMENDATION, NAVY UNIT COMMENDATION, MERITORIOUS MAST, CERTIFICATE OF COMMENDATION, RIFLE MARKSMANSHIP BADGE, PISTOL SHARPSHOOTER BADGE, MARINE CORPS MARITIAL ARTS BROWN BELT

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

20040220:	Reenlisted this date for a term of 4 years.

Discharge Process

Charge(s) Preferred:  NOT FOUND IN RECORD
Charge(s) and Specification(s):
	Article 107: Giving a false official statement
	Article 134: Adultery

Date Applicant Submitted SILT request:		20050201
	Consulted with or Waived Counsel:		YES
	Acknowledged Understanding Elements:	YES
	Acknowledged Guilt to:			Article(s) 107, 134 
		BCD/DD authorized for offense(s)	YES
	Acknowledged Consequences of OTH:	YES
	Type of Characterization Requested:	GENERAL (UNDER OTHER THAN HONORABLE CONDITIONS)

Separation Authority (date):			COMMANDING GENERAL, 4^TH MARINE AIRCRAFT WING, MARINE FORCE RESERVE (20050217)
	Reason for Discharge directed:		IN LIEU OF TRIAL BY COURT-MARTIAL
	Characterization directed:			UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:			20050302

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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, 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, Articles 107 (False Official Statement) and 134 (Adultry).

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