ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080722
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive: USMCR (DEP) 20031112 - 20031228  		Active:  

Period of Service Under Review:
Date of Enlistment:  20031229	Period of Enlistment:   Years   Months	Date of Discharge:  20050916
Length of Service:    Year    Months   18  Days	 Education Level:  	Age at Enlistment:  
AFQT:  50	MOS:  0151	Highest Rank:  	Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):   / 
Awards and Decorations (per DD 214):  Rifle   

Periods of UA/CONF:  

NJP:  
- 20041008:  Article 121 (Larceny, stole $100.00 from a civilian).
                     Awarded:      Suspended:     Suspension vacated 20041013

SCMs:	     SPCMs:       CC:  

6105 Counseling:  
- 20041109:  For a pattern of misconduct, specifically, you failed to properly conduct yourself as expected of a Marine
                     by committing larceny on two separate occasions.  On 20040902, while serving at the Random Vehicle 
                     Inspection checkpoint, you stole $100.00 from a vehicle you were inspecting.  On 20041103 you stole an 
                     NCO sword from the BN S-4 office which belonged to another Marine.  Your actions are unsatisfactory 
                     and unacceptable as a Marine.

- 20050310:  For my established pattern of misconduct as evidenced by, one nonjudicial punishment for stealing 
                     money, a page 11 for stealing an NCO sword and most recently for not being at your appointed place of 
                     duty on 20050220.  You are also being counseled on your military appearance, and your disrespectful 
                     attitude towards superiors, and your inability to make wise decisions for yourself both on and off duty.

- 20050727:  For operating a motor vehicle with a suspended drivers license.  Specifically, on 20050718 you 
                     knowingly and willfully operated your vehicle with a suspended driver’s license, after being counseled by 
                     your SNCOIC not to do so.  Your actions showed a disregard to the safety of others and a lack of 
                     maturity on your behalf and your failure to follow orders.

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.  Punishment was unjust.
2.  Young and immature.
3.  Post service conduct.

Decision

Date:  2008103 		Location:  Washington D.C.	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (PATTERN OF MISCONDUCT).

Discussion

:  ()  RELIEF NOT WARRANTED.  The Applicant claims the “Under Other Than Honorable Conditions” discharge he received was unfair since his only charge was driving with a suspended license.  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.  A review of the Applicant’s record reveals it was marred by three retention warnings for numerous discretions:  for larceny on two separate occasions; for establishing a pattern of misconduct; for not being at his appointed place of duty; for his military appearance; for disrespect to superiors; for his inability to make wise decisions; and for driving with a suspended license.  Additionally, the Applicant was the subject of a NJP for violation of the Uniform Code of Military Justice (UCMJ):  Article 121 (Larceny, stealing $100.00 from a civilian).  The Manual for Courts-Martial authorizes the award of a punitive discharge and up to one year in confinement if adjudged and awarded as part of the sentence upon conviction by a special or general court-martial for violations of the Article 121.

The Applicant has requested an upgrade in his discharge characterization to “Honorable”.  An “Honorable” discharge is appropriate when the quality of the service member’s service has met the standards of acceptable conduct and performance of duty for military personnel.  An “Under Other Than Honorable Conditions” discharge is warranted when the basis for separation is commission or omission of an act which constitutes a significant departure from the conduct expected of a service member.  The Board acknowledges the Applicant’s conduct clearly was a significant departure from the conduct expected from a U. S. Marine and the awarded discharge was appropriate.  A review of available records reveals nothing to indicate the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps.  The Board determined that his request for an upgrade was without merit and would be inappropriate.

:  ()  .  The Applicant states he has grown since the incident and has learned from his mistakes.  The Applicant was guilty of larceny not once, but twice:  He was counseled and given three opportunities to learn from his mistakes and correct his behavior.  The Applicant contends his youth and immaturity mitigates his misconduct.  While he may feel his youth was an underlying cause of his infractions, the record does not demonstrate his youth or immaturity were the root causes of his misconduct and his repeated actions clearly reflect he was unfit for military service.  The Board determined an upgrade would be inappropriate. 

:  ()  .  The Applicant states he has taken the past few years to grow and change things to make him not just a better person, but a great person.  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.  The key word here is “Outstanding”.  The Board is looking for actions that go beyond simply daily living.  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 is advised that completion of 

these items alone does not guarantee the upgrade of 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 did not provide a personal statement, supporting documentation of post service accomplishments or character witness statements to support his request for an upgrade.  The Applicant's efforts need to be more encompassing.  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 the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the time served and the UCMJ violations involved, and based on the limited post service documentation provided an upgrade would be inappropriate.

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

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 
1 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 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 121.

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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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