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

Docket No. MD08-01068

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20080422
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  MISCONDUCT
Authority for Discharge:  MARCORSEPMAN 6210.3 (PATTERN OF MISCONDUCT)

Applicant’s Request:	Characterization change to:  HONORABLE
			Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20040721 - 20040913  COG		Active:   NONE
Period of Service Under Review:
Date of Enlistment: 20040914		   Period of enlistment:  4 Years  0 Months		Date of Discharge:  20061011
Length of Service:  02  Yrs  00  Mths  28  Dys	Education Level:  12	Age at Enlistment:  18	AFQT:  35
MOS:  0311  	Highest Rank:  LANCE CORPORAL 		Fitness reports:  NOT APPLICABLE
Proficiency/Conduct marks (# of occasions):	3.7 (4)/3.4 (4)
Awards and Decorations (per DD 214):  Rifle: MM, Pistol: NONE, CAR, SSDR, GWOTSM, NDSM. 

Periods of UA/CONF:  UA:  20060402-20060429 (28)

NJPs:	3
	20050719:  Art 92 (Failure to obey order), 2 specifications.
	                   Awarded - RIR (E1), FOP ($617 for 2 months), RESTR EPD (45/45).  Susp - RESTR EPD for 6 months.
	20050927:  Art 92 (Failure to obey order),  2 specifications.
                                 Awarded - FOP ($617 for 2 months), RESTR EPD (45/45).  Susp - RESTR EPD for 6 months.  Vacated          
                                 20 JAN 06.
	20060120:  Art 134 (Negligent weapon discharge).
	                   Awarded - FOP ($318 for 2 months), RESTR EPD (45/45).  Susp - FOP and RESTR EPD for 6 months.

SCMs:	1
	20060602:  Art 86 (Unauthorized absence).
	                   Sentence - FOP ($318), RESTR (6 Days).

6105 Counseling: 3
	20051024:  For a pattern of misconduct (2 Bn level NJPs).
	20060122:  For a pattern of misconduct (3 Bn level NJPs).
	20060201:  For a pattern of misconduct (3 Bn level NJPs). 

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. Employment opportunities.
2. Minor offenses.

Decision

Date:  20080702	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 Misconduct.

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, Employment/Educational Opportunities, regarding this Issue.

Issue 2: (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was inequitable in light of the relative minor offenses he committed.  During Board reviews the government is presumed to conduct its affairs with regularity unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Board noted during an 11 month period the Applicant received three non-judicial punishments and a Summary Court Martial for violations of the Uniform Code of Military Justice, Articles 86 (Unauthorized absence); 92 (Disobeying lawful orders), a total of 4 specifications; and 134 (Negligent discharge of a weapon).  Furthermore, during this same period the Applicant was officially counseled on three occasions he could be administratively separated due to his developing pattern of misconduct.  
A Violation of Article 92 is considered a serious offense which can result in a punitive discharge and confinement for up to 2 years if adjudicated by a court-martial.  After the Applicant violated Article 86, the command processed him for an administrative separation for a pattern of misconduct rather than violation of Article 92 under a court-martial.   For the Applicant’s edification, an administrative separation is not deemed as punishment.  A separation under other than honorable conditions is warranted when significant aspects of a servicemember's service outweigh the positive.  The Board concluded the discharge was proper and equitable in light of a well-established pattern of misconduct in the Applicant's Service Record, which is clearly documented.  The Board determined an upgrade is not warranted. 

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.

ADMINISTRATIVE CORRECTIONS TO THE APPLICANT’S DD 214

The NDRB did note administrative errors on the original DD Form 214.  Block 25, Separation Authority, should read:  “MARCORSEPMAN PAR 6210.3”.  Headquarters Marine Corps, Deputy Commandant for Manpower and Reserve Affairs (MMSR-3), Quantico, VA will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 2001 until Present. 

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 violations of the UCMJ, Article 92 (disobeying lawful orders).

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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement		B&W – Confinement on bread and water			CC - Civilian conviction

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water