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

Docket No. MD07-00507

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

ex PVT, USMC
MD07-00507

Current Discharge and Applicant’s Request

Application Received:  20070306	Characterization Received:  UNDER OTHER THAN HONORABLE
Narrative Reason:  MISCONDUCT-DUE TO A PATTERN OF MISCONDUCT
Authority:  MARCORSEPMAN 6308.1C

Applicant’s Request:	Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)
			Narrative Reason change to: NONE REQUESTED
Applicant’s Issues:	1.  Change reenlistment code.
			2.  Immaturity and personal problems affected my service.
			3.  Post service.

Decision

By a vote of 5-0 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS).	
By a vote of 5-0 the Narrative Reason shall remain Misconduct-Pattern of misconduct (administrative discharge board required but waived).     

Date:  20071101  			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 2-3 (Equity):  After a thorough review of the records, testimony, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable at the time of issuance.  The Board noted, since discharge, the Applicant has demonstrated a strong commitment to community and excellence.  After a careful review of the Applicant's post service documentation and accomplishments, in addition to his official service record and supporting documentation, the Board found that relief is warranted for equity reasons.    

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 but not equitable. 

. 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)  19900727 - 19900923        COG		
Period of Service Under Review:
Date of Enlistment:  19900924   Years Contracted:  4; Extension:  NONE.	Date of Discharge: 19940104       
Length of Service:  03 Yrs    03 Mths   10 Dys	Lost Time:  Days UA:  NONE  Days Confined:  NONE
Education Level:  12	Age at Enlistment:  18	AFQT:  52   	MOS:  1371  Highest Rank:  LCPL
Proficiency/Conduct marks (# of occasions):	4.0 (10) / 3.8 (10)	 
Awards and Decorations (per DD 214):  NDSM, SSDR, JUC, HSM, RIFLE MARKSMAN BADGE, LOA. 

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

19930128:	NJP -- Viol UCMJ Article 123a.
	Awarded - FOP ($226) for (1months) suspended for 4 months, CCU for 7 days.

19930520:	MARCORSEPMAN 6105 counseling for deficiencies in conduct resulting in not recommended for promotion on 19920826, 19921014, 19921027, 19921124, and nonjudicial punishment on 19930128.  Discharge warning issued.

19931015:	NJP -- Viol UCMJ Article 92, motor vehicle and traffic regulations.  
	Awarded - FOP ($456) for (2 months) suspended for 3 months; RIR (E-2); Restr for (45 days); Extra duties (45 days).

19931019:	NJP suspended on19931015 is vacated.  

19931129:	NJP -- Viol UCMJ Article 134, breaking Battalion restriction.    
	Awarded - FOP ($200) for (2 months); RIR (E-1); Restr for (45 days); Extra duties (45 days).

Discharge Process

Date Notified:	19931217     
Basis for Discharge:	MISCONDUCT DUE TO A PATTERN OF MISCONDUCT
	
Least Favorable Characterization:	UNDER OTHER THAN HONORABLE CONDITIONS
Commanding Officer’s Intended Recommendation:	UNDER OTHER THAN HONORABLE CONDITIONS

Date Applicant Responded to Notification:		19931214
Rights Elected at Notification:
	Consult with Counsel			WAIVED
	Obtain Copies of Documents		WAIVED
	Submit Statement(s) (date)			WAIVED  
	Administrative Board			WAIVED

Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS (19931217)
SJA review (date):	SUFFICIENT IN LAW AND FACT (19931220)
Separation Authority (date):	COMMANDING GENERAL, 2D FORCE SERVICE SUPPORT GROUP (19931223)
              Basis for discharge directed:	MISCONDUCT DUE TO A PATTERN OF MISCONDUCT
              Characterization directed:	UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:	19940104

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.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 June 1989 until 17 August 1995, 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(s) 92 and 123a.

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