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

Docket No. MD09-01140

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20090325
Characterization of Service Received:  (corrected)  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (corrected)  MISCONDUCT
Authority for Discharge:  (per DD 214) MARCORSEPMAN 6210.3 [PATTERN OF MISCONDUCT]

Applicant’s Request:	Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19900530 - 19901015  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19901016	Age at Enlistment:  18
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  19941205	Highest Rank:  LANCE CORPORAL
Length of Service:  04  Year(s)  01  Month(s)  20  Day(s)
Education Level:  12	AFQT:  81
MOS:  2311
Proficiency/Conduct Marks (# of occasions):  3.3 (11) / 3.3 (11)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle EX (3) Pistol EX NDSM SSDR MUC LoA (2)

NJP:  3
- 19930815:	Article 86 (Absence without leave), 2 specifications
	Specification 1: 0430-0740, 19930701 from firing range
	Specification 2: 0730-1310, 19930712 from appointed place of duty
	Awarded: FOP CCU  Suspended:  FOP

- 19940329:	Article 86 (Absence without leave), 2 specifications
	Specification 1: 0445-0900, 19940322
	Specification 2: 0600-0700, 19940323
	Article 92 (Disobey an order)
	Awarded: FOP RESTR EPD  Suspended:  FOP

- 19940623:	Article 86 (Absence without leave), 2 specifications
	Awarded: FOP RESTR EPD  Suspended:  FOP  Suspension vacated 19940627

SCM:  1

- 19940916:	Article 86 (Absence without leave, 940712-940808, apprehended 28 days, 940915-941010, apprehended 25 days), 2 specifications
	Article 91 (Disobey order)
	Sentence: RIR E-1 CONF 30 DAYS

SPCM:  NONE 	CC:  NONE

Retention Warning Counseling:  6

- 19910617:	For dereliction of duty, failure to adhere to the 2^nd General Order.  SNM was asleep while MCD ADNCO.

- 19920314:	For management of his checking account.  Any further problems concerning this matter, disciplinary action will be taken.

- 19920907:	For failure to adhere to written orders and regulations (asleep on post) while assigned as the ADNCO and financial irresponsibility concerning the management of your checking account.  On or about 19920427, 19930507 you were not recommended for promotion to Corporal due to your lack of good judgment, personnel appearance, financial obligations, and unauthorized absence.  On or about 19930804 you received nonjudicial punishment for violation of Article 86 twice for not being at your appointed place of duty.  Your blatant disregard to both the UCMJ and Marine Corps regulation are totally unacceptable and will not be tolerated.

- 19940407:	For unauthorized absence from rifle range duty at 0900, 19940322.  You failed to follow written and verbal orders while bluntly disregarding good order and discipline.

- 19940505:	For failure to adhere to BNO P11101.2A CO.O 1601.1D for possession of (2) 5.56mm M16 rounds in your assigned living quarters on 0700, 19940424.

- 19941012:	For your blatant disregard and frequent violations of the UCMJ.  You have set a pattern of misconduct that is prejudicial toward the good order and discipline of the military service.

Administrative Corrections to the Applicant’s DD 214

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

	Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”

	Block 28, Narrative Reason for Separation, should read: “MISCONDUCT”

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.	Claims to have had a very good military career until he got married.
2.	Was very young and made a mistake that cost him his discharge.
3.    Post-service warrants consideration. 
Decision

Date:  20091022	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 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 Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service reflects six 6105 counseling warnings; three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 6 specifications) and Article 92 (Disobey an order, by not reporting to the Battalion Armory at 0445); and one summary court-martial (SCM) for violations of the UCMJ: Article 86 (Absence without leave, 940712-940808 for 28 days and was apprehended while driving with revoked driving privileges, 940915-941010 for 25 days and was apprehended while driving with revoked driving privileges) and Article 91 (Disobeying an order from a superior noncommissioned officer).  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  When processed for administrative separation, the Applicant waived his rights to consult with a qualified counsel and request an administrative discharge board, but elected to submit a written statement.  

Issue 1-2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends he had a very good military career before he got married to his first wife, and was very young when he made a mistake that resulted in his discharge from the Marine Corps.  As noted above, the Applicant clearly met the requirements for separation due to a pattern of misconduct.  In a statement by the Applicant’s Officer in Charge, “He had been UA more then 30 times” and “Pvt Shelden had lied so much that he doesn’t know when he is telling the truth or a lie.”  While the Applicant may feel his marriage and youth were the underlying causes of his misconduct, he provided no documentation or explanation in support of his contention.  Furthermore, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions due to being married or young.  The NDRB recognizes that many of our service members are young at the time they enlist or get married at an early age, but still manage to serve honorably.  The NDRB determined the awarded characterization of service was warranted.
  
Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends he plays a vital part in his community and his new family.  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's statements alone, without sufficient documentary evidence, are not enough 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 substantiates or relates 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 the 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.  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 positive 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, service 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 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, Automatic Upgrades, and Post-Service Conduct.

Pertinent Regulation/Law

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.

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 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