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

Docket No. MD08-01942

ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received:  20080923
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)	20010713 - 20011104  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  20011105	Age at Enlistment:  20
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20040617	Highest Rank:  LANCE CORPORAL
Length of Service:  02  Year(s)  07  Month(s)  13  Day(s)
Education Level:  12	AFQT:  34
MOS:  3051
Proficiency/Conduct Marks (# of occasions):  3.2 (7) / 3.2 (7)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM NDSM SSDR GWOTEM PUC

Periods of UA/CONF:  NONE

NJP:  2
- 20020917:	Article 86 (UA - morning formation)
	Article 91 (Disrespectful to 1^st Lt by falling asleep while being counseled)
	Article 92 (Failure to obey an order or regulation -2 specifications)
	   Spec 1: Violate MCO P1020.34F by wearing an earring
	   Spec 2: Violate R.O. 1050 by entering Tijuana without proper authority
	Article 134 (Debt, dishonorably failing to pay)
		Awarded: RIR FOP CCU 30 DAYS   Suspended:  RIR FOP  
		[Missing Back page of NJP paperwork, thus NFIR on additional awarded/suspension of punishment] 

- 20031211:	Article 86 (Unauthorized absence: 0615-1005 on 20031031)
		Awarded: RIR RESTR  Suspended:  NFIR
			[Missing Back page of NJP paperwork, thus NFIR on additional awarded/suspension of punishment]
SCM:  1

- 20030613:	Article 86 (Going from appointed place of watch)
	Article 91 (Disobeying an order)
	Article 92 (Dereliction of duty)
		Sentence: FOP   

SPCM:  NONE

CC:  NONE

Retention Warning Counseling:  4

- 20020506:	For failure to go to your appointed place of duty.  On 20020420 you were late for your scheduled fire- watch at 1400 and you failed to report for your fire-watch at 0200.  Accountability is paramount to the Marine Corps mission; you may not come and go as you please.  Rules and regulations are made for a reason, to ensure the good order and discipline.  This type of behavior is unacceptable and will not be tolerated.
- 20020910:	For having on several occasions been late to formations and musters.  You have been informally counseled on several occasions and remediation efforts have not been effective.  You have further violated the UCMJ by disobeying orders by wearing earrings, entering the country of Mexico without proper permission (Art 92) and sleeping in your workspace vice accomplishing your sections mission.  Additionally your personal finances are in disarray.  You owe another Marine money for phone charges that you accumulated on their account, and you damaged the car speakers of yet another Marine.  Your performance is not indicative of the traits normally associated with a Marine.  Further violations and disruptive behavior will not be tolerated.
- 20030305:	For negligently discharging your weapon without competent authority nor in self-defense and exercising poor judgment in discharging your weapon.  While assigned to the guard force, you were directly responsible for negligently discharging your weapon.  As a member of the guard force, one of your primary responsibilities is to be thoroughly familiar with rules of engagement.  Prior to assuming post, you received a class of rules of engagement as well as how to stand your post.  Your failure to apply the rules of engagement guidelines or seek assistance from the Sergeant of the Guard had a direct impact on you negligently discharging your weapon.
- 20040112:	For my multiple violations of Article 134-102 of the Uniform Code of Military Justice.  I am being counseled for failure to comply with the rules, regulations, and restrictions put on me as a result of my recent Group nonjudicial punishment.  Knowingly during the time of these violations I will continue to serve the remaining portion of my restriction.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	Block 12c, Net Active Service This Period, should read: “02 Years  07 Months  13 Days”
	Block 13, Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:     “National Defense Service Medal, Sea Service Deployment Ribbon, Global War on Terrorism Expeditionary Medal (CSSB-16), Presidential Unit Citation (CSSG-15), Rifle Marksman Badge, and no more.

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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:  ☐

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

Applicant’s Issues

1.  Applicant feels his discharge was too harsh for his misconduct of record. 
2.  Applicant feels his discharge does not accurately reflect his character of service due to mitigating circumstances.
3.  Applicant feels his post-service conduct is worthy of consideration.
 
Decision

Date:  20091022	DOCUMENTARY REVIEW	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 four 6105 counseling warnings, two nonjudicial punishments (NJP’s) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence), Article 91 (Disrespectful to a Commissioned Officer by falling asleep while being counseled), Article 92 (Failure to obey an order or regulation: 2 specifications – wearing an earring and entering Tijuana, Mexico without proper authority) and Article 134 (Debt, dishonorably failing to pay); and a Summary Court-Martial (SCM) for violations of the UCMJ: Article 86 (Unauthorized absence), Article 91 (Disobeying an order) and Article 92 (Failure to obey an order or regulation).  Based on the offense(s) committed by the Applicant, his command administratively processed him for separation.  When notified for Administrative Separation Processing, the Applicant elected his rights to consult with qualified counsel (1^stLt N_), submit a written statement for consideration by the separating authority, and to request an administrative board, which he later waived per a letter dated 12 March 2004.  

Issue 1:  (Decisional) (Equity) RELIEF NOT WARRANTED.  The Applicant contends his discharge was too harsh for his misconduct of record.  Although the Applicant may feel his offenses were minor in nature, certain offenses warrant separation from the naval service in order to maintain good order and discipline. The NDRB recognizes that serving in the Marine Corps is very challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most Marines serve honorably and therefore earn honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure that Marines receive no greater of lesser characterization than is due.  Based on the Applicant’s record, the NDRB determined his service was equitably characterized as being performed under other than honorable conditions. Relief denied.
  
Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED. The Applicant contends his discharge does not accurately reflect his character of service due to mitigating circumstances (in-service medical and mental health problems).  Although the applicant feels that his medical and mental health issues contributed to his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions.  The only references to mental health issues within the Applicant’s medical record are dated 10 December 2003, one day prior to an NJP, to evaluate his mental status to determine if another work assignment would be likely to alleviate the following symptoms (feeling tense, stressed, uptight, borderline depression with anxiety) and poor performance on the job.  The NDRB did note that the Applicant’s brother had died in November 2003 and determined that the loss of his brother and his impending NJP may have contributed to his mental health issues at the time of this evaluation, but the NDRB did not believe this loss mitigated the consider adverse behavior the Applicant displayed over nearly a 24-month period.  Relief denied.      
  
Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his post-service conduct is worthy of consideration.  The Applicant provided only service-related documentation that was available and more than likely considered at the time of discharge.  The Applicant provided very little verifiable post-service documentation in order to support his efforts, despite being advised as to what to provide the Board in earlier correspondence.  The Applicant is directed to the Post-Service Conduct paragraph on the addendum for a list of items that would be beneficial for the NDRB to review.  In addition, maintain your contact with the American Legion for assistance if you choose to appear before a Personal Appearance Hearing.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical andservice record entries, and discharge process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain PATTERN OF MISCONDUCT.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, and Post-Service Conduct.

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.

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 Association of Service Disable 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 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 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