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

Docket No. MD08-01584

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20080721
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  PATTERN OF 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)	19910209 - 19910226  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  19910227	Age at Enlistment:  20
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  19931210	Highest Rank:  LANCE CORPORAL
Length of Service:  02  Year(s)  09  Month(s)  14  Day(s)
Education Level:  12	AFQT:  50
MOS:  0411
Proficiency/Conduct Marks (# of occasions):  3.1 (7) / 2.8 (7)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle EX NDSM SSDR

Periods of UA/CONF:  NONE

NJP:  3
- 19920821:	Article 134 (Disorderly conduct)
	Article 90 (Disobeyed lawful command)
	Awarded: FOP RESTR EPD  Suspended:  NONE

- 19921221:	Article 86 (Unauthorized absence, fail to go at time prescribed and morning formation), 2 specifications
	Article 92 (Willfully disobey regulations)
	Awarded: RIR FOP RESTR EPD  Suspended:  RIR

- 19930804:	Article 134 (Break restriction)
	Article 91 (Violate ASO P11101.33a and disrespectful)
	Article 90 (Willfully disobey order)
	Awarded: RIR FOP RESTR EPD  Suspended:  NONE

SCM:  1
- 19930706:	Article 113 (Sleeping on post)
	Sentence: RIR E-2 RESTR FOP
	CA Action 19930715 Approved and ordered executed

SPCM:  NONE 	CC:  NONE

Retention Warning Counseling:  9

- 19910920:	For failure to obey the base regulation on prohibiting the possession of alcoholic beverages in the BEQ.

- 19920722:	For lost Military Identification Card.

- 19920803:	For your involvement in an alcohol related incident as evidenced by your arrest by military police for drunk and disorderly behavior on 19920406.

- 19920811:	For your failure to maintain you weight and or military appearance in accordance with Marine Corps standards and your assignment to weight control/MA program.

- 19920821:	For your alcohol related incident on 19920815 in that you had a 1/2 gallon of liquor in your possession in the barracks against the Battalion Commanders policy and you were belligerent to the DNCO.  These incidents, I feel are indicative of an alcohol problem.  Also the fact that this is your second alcohol related incident indicates a problem with alcohol.

- 19921208:	For your removal from weight control, effective 19920922.  You are cautioned that should you allow your weight to exceed Marine Corps standard in the future, it will be you second occurrence and you could be subject to involuntary separation from the Naval Service.

- 19930225:	For frequent involvement with military authorities.  Specifically, possession of alcoholic beverages in the BEQ on 19910920; drunk and disorderly behavior on 19920406; NJP on 19920821 and NJP on 19921221.

- 19930316:	For poor judgment, specifically, not informing your section that you had been excused from formation by a corpsman, thereby causing your section to consider you UA.

- 19930325:	For lost 10520 card.

Types of Documents Submitted/reviewed

Related to Military Service: 
              DD 214:  ☒	                            Service/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 Congress member:    ☐

                    Other Documentation:  ☐

A.  Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 
27 June 1989 until 17 August 1995.

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 113, Misbehavior of a sentinel.

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

Applicant’s Issues

1.	Was impaired by his medical problems which mitigated to his misconduct.
2.	His alcohol dependency contributed to his misconduct.
3.	Post-service warrants consideration.
Decision

Date:  20100310	PERSONAL APPEARANCE HEARING	Location: Washington D.C.	 Representation: American Legion

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 PATTERN OF MISCONDUCT.

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included nine 6105 counseling warnings; and three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence, fail to go at time prescribed and morning formation) 2 specifications, Article 90 (Willfully disobey order, from his superior commissioned officer, for having “hard” liquor in his room  and direct order from a commissioned officer) 2 specifications, Article 91 (Wrongfully violated ASO P11101.33a by having 2 female visitors after 2200, and disrespectful to noncommissioned officer) 2 specifications, Article 92 (Willfully disobey regulations, by not following grooming standards and not having AFID card) 2 specifications, and Article 134 (Breaking restriction and disorderly conduct) 2 specifications; and one summary court-martial (SCM) for violation of the UCMJ: Article 113 (Sleeping on post).  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  When notified of administrative separation processing using the notification procedure, the Applicant waived his rights to submit a written statement and request an administrative board, but elected to consult with a qualified counsel.

Issues 1-2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his medical and alcohol dependency mitigated his misconduct.  Specifically, he claims his severe hammertoes and knee conditions drove him to drink to release his pain, which resulted in his discharge.  He provided no documentary evidence to support his claim of being an alcoholic.  In reviewing his service records, he was screened on April 7, 1992, by the Substance Abuse Control Officer, who referred the Applicant to the Joint Drug and Alcohol Center (JDAC).  Based on the evaluation by JDAC, the Applicant did not fit the criteria for abuse or dependent alcoholic, but was recommended to attend Level I education.  The NDRB determined he clearly met the requirements for separation by reason of misconduct – pattern of misconduct and the awarded characterization was warranted.  Relief denied.

Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his post-service warrants consideration.  Besides the DD Form 293 and statement he provided, the NDRB determined the Applicant did not provide sufficient documentary evidence to form a basis of relief.  On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6" (Issues: Why an upgrade or change is requested and justification for the request).  Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures, which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct.  In addition, the American Legion agent who representat informed the Applicant in bring supporting documentation.  Besides the Applicant's statement on the DD Form 293, he failed to provide any additional documentation and evidence on his behalf to support a post-service conduct review 

The Applicant should provide documentation which could include but not limited to:  letters of personal references and verifiable employment record/letter of recommendation from his employers; evidence of a drug free life style (completion of rehab/proof he attended Narcotics Anonymous or AA meetings); certification of non-involvement with civil authorities, evidence of financial stability (home ownership/home rental history, credit card payments); college transcripts; documentation of community/church service; and if married, a marriage certificate.  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. 
However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant must have a full understanding that post-service conduct alone does not guarantee an upgrade.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain PATTERN OF MISCONDUCT.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; 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 companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   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 accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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 – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW – Confinement on bread and water

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