ex-WO-1, USMC
MD07-01141

Current Discharge and Applicant’s Request

Application Received:  20070817 	Characterization Received:  
Narrative Reason:  IN LIEU OF TRIAL BY COURT MARTIAL 	Authority:  MARCORSEPMAN 4104

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Isolated incident
			2. Service Record

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  IN LIEU OF TRIAL BY COURT MARTIAL.

Date:  20080117    		Location:  Washington D.C.	 Representation:  

Discussion

Issue 1: ().  The Board found that the Applicant had been recommended for separation from service because of  another unrelated, occurrence of misconduct at the time he was accused of wrongfully purchasing and providing alcohol to dependents under the age of 21.

Issue 2: ().  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An 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.  Certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service, was marred by the award of one nonjudicial punishment (NJP) for a violation of the Uniform Code of Military Justice (UCMJ), Article 134 (Fraternization).  Additionally, the Applicant requested a separation in lieu of a trial by court martial for violation of Article 92.  A violation of UCMJ Articles 92 is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  Violation of Article134 is considered serious offenses for which dismissal is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.

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  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19891019 - 19901014  		Active:   	19901015 - 19951101  
										19951102 - 19981201  
										19981202 - 20020205  
										20020206 - 20030202  
Date of Commission:  20030203		Date of Discharge:  20050429

Length of Service (02 years, 02 months, 27 days):

	Active:    12  03  18  	Inactive:  None

Time Lost During This Period (None):

Age at Commission:  32

Type of Commission:  Regular (Indefinite) (First three years probationary until WOBC and MOS school completed)

Education Level:  12				Degree:  NONE

Highest Grade:  WO-1

Final Officer’s Fitness Reports were not available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Marine Corps Good Conduct Medal (4), Navy Marine Achievement Medal (2), Global War on Terrorism Service Medal, Southwest Asia Service Medal, Sea Service Deployment Ribbon (3), Armed Forces Service Medal, National Defense Service Medal (2), Armed Forces Expeditionary Medal (Adriatic Sea), Humanitarian Service Medal, NATO Medal, Navy Unit Commendation (2), Navy Meritorious Unit Commendation (2), Meritorious Mast, Letter of Appreciation, Rifle Expert Marksmanship Badge (3), Pistol Expert Marksmanship Badge (2)

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

20040504:	NJP -- Viol UCMJ Art. 134 - Fraternization.
	Awarded - FOP ($1582.00) for (2 months) $750.00 susp for 6 months; 45 days rstr; Letter of Censure

20040524:	CG directs Applicant to show cause for retention at a Board of Inquiry (BOI)

20040804:	BOI substantiated the allegations of misconduct and recommended the Applicant be separated with a General (Under Honorable Conditions) characterization of service.

20040820:	Applicant wrongfully purchased and provided alcohol to military dependent under the age of 21.  Applicant provides false statement to the investigating officer.

Discharge Process

Charge(s) Preferred:  20041123
Charge(s) and Specification(s):
	Article 92:      
	     

Date Applicant Submitted SILT request:		20050124
	Consulted with or Waived Counsel:		
	Acknowledged Understanding Elements:	
	Acknowledged Guilt to:			Article(s) 92 
		BCD/DD authorized for offense(s)	
	Acknowledged Consequences of OTH:	
	Type of Characterization Requested:	

Commanding Officer Recommendation (date):	   (20050125)
Separation Authority (date):			ASN (M&RA) (20050408)
	Reason for Discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			20050427

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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

C.  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.

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