Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. MD09-01184

ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received:  20090331
Characterization of Service Received:  (per DD 214)  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (corrected)  IN LIEU OF TRIAL BY COURT MARTIAL
Authority for Discharge:  (per DD 214) MARCORSEPMAN 6419 [IN LIEU OF TRIAL BY COURT MARTIAL]

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

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19930610 - 19930615  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19930616	Age at Enlistment:  18
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  19940519	Highest Rank:  PRIVATE FIRST CLASS
Length of Service:  00  Year(s)  11  Month(s)  04  Day(s)
Education Level:  12	AFQT:  42
MOS:  3381
Proficiency/Conduct Marks (# of occasions):  3.9 (3) / 2.9 (4)	Fitness Reports:  NOT APPLICABLE

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

Periods of UA:  0601, 19940214 - 1613, 19940331 (45 days)

NJP:  NONE    SCM:  NONE     SPCM:  NONE     CC:  NONE

Retention Warning Counseling:  NONE
YesYesNot ApplicableNot Applicable
Administrative Corrections to the Applicant’s DD 214

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

	Block 28, Narrative Reason for Separation, should read: “IN LIEU OF TRIAL BY COURT MARTIAL”

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.	Punishment was too harsh for the offense.  
2.    Post-service.

Decision

Date:  20100428    PERSONAL APPEARANCE HEARING	Location: Washington D.C.	 Representation: American Legion

By a vote of 3-2 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain IN LIEU OF TRIAL BY COURT MARTIAL.

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 did not have a pre-service drug waiver.  Evidence the Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs was not found in the record.  The Applicant was separated from the Marine Corps after requesting separation in lieu of trial by court-martial (SILT).  Per regulations, in order to attain approval for a SILT request, service members must have been afforded the opportunity to consult with a qualified counsel and submit a written statement.  They must also fully understand the elements of the offense(s) for which they were charged and must admit their guilt.  They further certify a complete understanding of the negative consequences of their actions and that characterization of service could be Under Other Than Honorable Conditions (OTH), which might deprive them of virtually all veterans' benefits based upon their current enlistment, and that they might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  The Applicant was in violation of Article 86 (Unauthorized absence) for a period of 45 days which ended when he was apprehended by authorities.  The Applicant signed request for SILT documents dated 2 May 1994 prepared in accordance with regulations and found to be sufficient in law and fact by competent legal authority on 9 May 1994.  The Applicant’s SILT was approved on 12 May 1994 and he was subsequently discharged with an Under Other Than Honorable characterization of service.  

Issue 1:  (Decisional) (Equity)  RELIEF WARRANTED.  The Applicant contends his discharge was too harsh for the offense.  The NDRB carefully considered the evidence of record as well as testimony by the Applicant and his witness.  The NDRB found partial relief to be warranted due to the Applicant’s youth and immaturity at the time of the offense.  The NDRB found the Applicant’s testimony credible, and believes he fully intended to surrender to authorities, but was pre-empted by a family member who phoned the local police.  Partial relief warranted.    

Issue 2:  (Decisional) (Equity)  RELIEF WARRANTED.  The Applicant requested that the NDRB consider his post-service conduct as a basis for a more thorough understanding of his performance and conduct during the period of service under review.  The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration.  The Applicant’s documentation of his post-service activities was outstanding.  Since discharge, the Applicant has maintained steady employment, an outstanding credit rating, a drug, alcohol and crime free lifestyle and has excelled in several education and training programs.  The Applicant is a responsible father and is involved in his community as a youth sports coach.  Further, the Applicant received certificates of appreciation for outstanding performance in his job as a city worker going above and beyond the call of duty when severe storms caused extreme damage to his hometown.  The Applicant’s misconduct of record was clearly an aberration and not indicative of his true character.  The NDRB found the Applicant to be an outstanding citizen with commendable post-service conduct.  The Board voted two for upgrade to HONORBLE and three for upgrade to GENERAL (UNDER HONORABLE CONDITIONS). 

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 but not equitable.  Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL.

Pertinent Regulation/Law

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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