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

Docket No. MD07-00931

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

ex-PVT, USMC
MD07-00931

Current Discharge and Applicant’s Request

Application Received:  20070626 	Characterization Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason:  SEPARATION 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.  Better life opportunities.  
			2.  Youth and immaturity.
			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 Narrative Reason shall remain SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

Date:  20071220	DOCUMENTARY REVIEW	Location:  Washington D.C.	 Representation:  NONE

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 (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 immaturity.  While he may feel that this was the underlying cause of misconduct, the record clearly reflects willful misconduct and demonstrated he was unfit for further service.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  A under other than 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 two discharge warnings, two nonjudicial punishments, one guilty finding at a Summary Court-Martial, and preferred charges for violation of UCMJ Article 112a to a Special Court Martial.  Marines may be separated upon their request in lieu of trial by special or general courts-martial if charges have been preferred with respect to an offense for which a punitive discharge is authorized and it has been determined that the Marine is unqualified for future military service.  The Applicant, after consultation with Defense Council, willfully signed the request.  A violation of UCMJ Article 112a is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.  

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 reference letters as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of a rug free lifestyle, 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.   

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)  19930903 - 19940801  COG		
Period of Service Under Review:
Date of Enlistment: 19940802	   Years Contracted:  4; Extension:  NONE.	Date of Discharge:  19980814
Length of Service:  04 Yrs   00 Mths   13 Dys	Lost Time:  Days UA:  NONE     Days Confined:  13
Education Level:  12	Age at Enlistment:  18	AFQT:  35   	MOS:  3381      Highest Rank:  LCPL
Proficiency/Conduct marks (# of occasions):	4.1(6) / 3.8(6)	 Awards and Decorations (per DD 214):  NDSM, SSDR, CERT COMM x 3, LOA, MM  

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

19930817:	Applicant signs Marine Corps policy concerning use of illegal drugs. 

19951012:	NJP -- Viol UCMJ Art. 91, 2 specifications and 92.
	Awarded - FOP ($200) for (2 months); RIR (E-1); Restr for (30 days).

19970124:	NJP -- Viol UCMJ Art. 86 and 92.
	Awarded - FOP ($505) for (2 months) (suspended for 6 months); RIR (E-2); Restr for (45 days); Extra duties (45 days).

19971114:	SCM -- Viol UCMJ Art(s) 80, 86, (4 specifications), 92, 117, 128.
	Awarded -  FOP ($600) for (1 month); RIR (E-1); Confinement (30 days).

19980202:	MARCORSEPMAN 6105 counseling for unprofessional conduct.  Discharge warning issued. 

19980522:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 19980516, tested positive for THC.

19980602:	MARCORSEPMAN 6105 counseling for illegal drug involvement, THC use.  Mandatory processing for administrative separation.  

SEPARATION IN LIEU OF TRIAL

Discharge Process

Charge(s) Preferred:  				19980619
Charge(s) and Specification(s):			Article 112a 

Date Applicant Submitted SILT request:		19980716
	Consulted with or Waived Counsel:		YES
	Acknowledged Understanding Elements:	YES
	Acknowledged Guilt to:			Article(s) 112a 
		BCD/DD authorized for offense(s)	YES
	Acknowledged Consequences of OTH:	YES
	Type of Characterization Requested:	UNDER OTHER THAN HONORABLE CONDITIONS

Commanding Officer Recommendation:		APPROVE,  UNDER OTHER THAN HONORABLE CONDITIONS
Separation Authority:				COMMANDING GENERAL, 1^ST MARINE DIVISION (19980811)
	Reason for Discharge directed:		IN LIEU OF TRIAL BY COURT-MARTIAL
	Characterization directed:			UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:			19980814

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 P1900.16E), effective 18 August 1995 until 31 August 2001.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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) 91, 92, 112a, 128.  

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