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

ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received: 20080418
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: IN LIEU OF TRIAL BY COURT MARTIAL (GOOD OF THE SERVICE)
Authority for Discharge: MARCORSEPMAN 6419 (IN LIEU OF TRIAL BY COURT MARTIAL)

Applicant’s Request: Characterization change to: HONORABLE
		      Narrative Reason change to: REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19930414 - 19930801  COG		Active:   NONE

Period of Service Under Review:
Date of Enlistment: 19930802	Period of Enlistment:  4 Years  0 Months	Date of Discharge:  19970522
Length of Service:  03  Yrs  09  Mths  21  Dys	Education Level:  GED	Age at Enlistment:  20	AFQT:  61
MOS:  0431	Highest Rank:  LANCE CORPORAL   Proficiency/Conduct Marks (# of occasions):  4.2 (8) / 4.1 (8)
Awards and Decorations (per DD 214):  Rifle SS NDSM LOA (2) GCM

6105 Counseling: 4
19950120: For failing to respond to warrants from civilian law enforcement resulting in being incarcerated.
19950912: For financial irresponsibility, specifically your bounced check(s).
19960712: For the uprightness of moral character expected from United States Marines.  Marines have served and 
                   continue to serve well beyond our nation's call of duty.  Our core values of honor, courage, and
                   commitment typify both what Marines stand for, and what out nation expects from her Marines.  You have
                   failed to embrace the core values as demonstrated by your repeated financial misleadings and your
                   unprofessional involvement with other women than your wife.  Repeated unprofessional involvment with
                   women to whom you are not married will cause undue stress to the Marine Corps family and can lead to
                   possible violations of the UCMJ.  Further financial misleadings and unprofessional relationships can
                  damage unit cohesivness, combat readiness and may result in further disciplinary action.
19960911: For failure to maintain acceptable standards of personal conduct, to include trends of financial
                   irresponsibility, and behaviors with women other than your spouse, which have impacted your ability to 
                   meet your financial obligations.  Creditors and other off-duty problems have consistently come to the
                   command for action.

Arrest:	1
	19941216:  Applicant in hands of civilian authorities.  No further information found in service record.

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  ☒	Service and/or Medical Record:  ☒		Other Records:  ☐

Related to Post-Service Period:	
	Employment:		☐	Finances:		☐	Education/Training:	☐
	Health/Medical Records:	☐	Substance Abuse:		☐	Criminal Records:	☐
	Family/Personal Status: 	☐	Community Service:  	☐	References:  		☐
Additional Statements From Applicant:  ☒		From Representation:  ☐		From Member of Congress:  ☐
Other Documentation (Describe): ☐

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

Applicant’s Issues

1.  Reenlistment opportunities.
2.  Wife was responsible for bounced checks which were the basis for the discharge.
3.  Post-service conduct.
4.  Passage of time.

Decision

Date:  20080829	DOCUMENTARY REVIEW	Location:  Washington D.C.	 Representation:  NONE

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.

Discussion

Issue 1: This is either an Issue which the Board cannot form the basis of relief for the Applicant, or one the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning Reenlistment/RE Codes regarding this Issue.

Issue 2: (Equity)  RELIEF NOT WARRANTED.  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.  The Applicant contends his problems in the Marine Corps can be attributed to his wife bouncing checks.  While he may feel his wife was the underlying cause of his misconduct regarding the bounced checks, the record of evidence does not demonstrate the Applicant, as the military sponsor, was not responsible for this misconduct or that he should not be held accountable for his actions.  The Applicant’s record of service was marred by 4 retention warnings and numerous violations of the Uniform Code of Military Justice (UCMJ), to include Article 86, 92, 107, 121, 123a, and 134.  Violations of Articles 92, 107, 121, 123a, and 134 are considered serious offenses, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial.  In order to avoid a court martial the Applicant agreed to a separation in lieu of a trial by court-martial and admitted guilt.  The list of charges which the Applicant admitted to in his request for separation in lieu of Court-Martial include violations of  the UCMJ, Articles 86, 92, 107, 121, 123a, and 134.  The Board determined an upgrade would be inappropriate based on this misconduct.  

Issue 3-4: (Equity)  RELIEF NOT WARRANTED.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides 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.  Outstanding post-service conduct, 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, is considered during Board reviews.  Supporting documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card company’s or other financial institutions; documentation of a drug free lifestyle; and character witness statements.   The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service conduct mitigates the reason for the characterization of discharge.   

 The Applicant stated he has not been in trouble with the law since being discharged but provided no documentation to support those claims.  To warrant an upgrade to “Honorable” the Applicant’s post service efforts need to be fully documented and substantial.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.  The Board determined based on the documentation provided an upgrade would be inappropriate and the characterization of service received, “Under Other Than Honorable Conditions” was an appropriate characterization considering the time served, the number of retention warnings the command issued to the Applicant concerning his misconduct and financial irresponsibility, and the excessive number of UCMJ violations involved.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record, Discharge Process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable.

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.  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.

D.  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 92, 107, 121, 123a and 134.

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 or is referred to a court-martial 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 other medical related reasons.”  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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