ex-, USMC
MD07-00513

Current Discharge and Applicant’s Request

Application Received:  20070306 	Characterization Received:  
Narrative Reason:  MISCONDUCT - Minor disciplinary infractions (administrative discharge board required but waived)
Authority:  MARCORSEPMAN 6210.2

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1.  Veteran’s benefits.  
			2.  Youth and immaturity.
			3.  Record of service.
			4.  Forced out of service while awaiting Physical Evaluation Board results.   
			5.  Receiving PTS counseling for service experiences.
			6.  Post service. 

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT-MINOR DISCIPLINARY INFRACTIONS.

Discussion

:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .

Issue(s) 2-3 (Equity).  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.  The Applicant contends that his   problems were attributed to his immaturity.  While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his minor incidences of misconduct and demonstrated he was unfit for further service.  There is credible evidence in the record that the Applicant committed minor disciplinary infractions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that she 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 NDRB noted the Applicant’s trouble free first twenty six months of service and noted that the non-judicial punishments were after the accident/incident inside the Applicant’s home.  

Issue 4 (Propriety).  Administartive separation does not supersede a disability separation unless the administrative separation is for misconduct.  When administrative separation proceedings for misconduct and disability evaluation proceedings are being run concurrently, the former takes precedence.  The government acted properly in the separation proceedings.

Issue 5 (Equity).  The Applicant implies that his problems were possibly attributed to Post Traumatic Stress.  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. The NDRB found no medical diagnosis in the record to support the Applicant's claim.  The Appplicant’s statement of receiving counseling for stress does not support his claim.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  

Issue 6 (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, good conduct, or favorable endorsements 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 a strong character witness, verifiable employment references, evidence of education, and letters of reference and of character.  The Board noted that the Applicant has demonstrated a strong commitment to family, employment, community, and overall excellence.  His post-service actions demonstrate that his unsatisfactory performance and characterization of service was most likely not reflective of his overall character.  However, the Board found that the Applicant’s post-service conduct does not sufficiently mitigate his misconduct while on active duty to warrant full relief in the form of an honorable discharge.  Therefore the Board found that partial 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, Discharge Process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19900220 - 19900528  		
Period of Service Under Review:
Date of Enlistment: 19900529		Years Contracted:  	Date of Discharge:  19930527
Length of Service:  02  Yrs  11  Mths  29  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  44	 MOS:  2531
Highest Rank:  LCPL           Proficiency/Conduct marks (# of occasions):	4.0(14)/3.9(14)
Awards and Decorations (per DD 214):  SSDR, NUC, SASM W/2 STARS, NDSM, MUC, KLM, RIFLE EXPERT BADGE

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

19920713:	MARCORSEPMAN 6105 counseling for discrepancies of insubordinate conduct toward a noncommissioned officer on 19920701 and unauthorized absence on 19920626.  Discharge warning issued..

19920916:	MARCORSEPMAN 6105 counseling for driving on a revoked state driving license.  Driving privilges revoked aboard Camp Lejeune, NC for a period of one year.

19930315:	Request for Line of Duty investigation for a motor vehicle accident on 19930131.

19930315:	Applicant being processed for Physical Evaluation Board at Naval Hospital, Camp Lejuene.

19930326:	NJP -- Viol UCMJ Art. 92 – 2 specifications.  Fail to obey a lawful general order/regulation; Art. 134 - 2 specifications.  Wrongfully trying to obtain a visitors pass,  make false official statement; Art. 81 - Conspire to commit an offense under the UCMJ.
	Awarded - FOP ($400.00) for (2 months); RIR (E-2); Restr for (30 days).  FOP and Restr suspended for 6 months.
19930423:	NJP -- Viol UCMJ Art. 92 - 2 specifications.  Violate BO 1020.8U by not having a proper shave and by wearing an improper uniform.
	Awarded - FOP ($300.00) for (2 months); RIR (E-1); Restr for (30 days).  FOP and Restr suspended for 6 months.

19930510:	MARCORSEPMAN 6105 counseling for misconduct as evidenced by a pattern of minor disciplinary infractions which has resulted in your being the subject of counselings for insubordinate conduct and driving while on state revocation.  Being processed for adminstrative separation. 

Discharge Process

Date Notified:	19930514
Basis for Discharge:	 DUE TO 
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		19930517
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (19930517)
SJA review (date):	 (19930520)
Separation Authority (date):	COMMANDING GENERAL, 2D FORCE SERVICE SUPPORT GROUP (19930524)
              Basis for discharge directed:	 DUE TO 
              Characterization directed:	
Date Applicant Discharged:	19930527

NDRB Documentary Review Conducted (date):	20030522
NDRB Documentary Review Docket Number:	MD02-01149
NDRB Documentary Review Findings:		No change warranted.

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 P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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.

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