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

Docket No. MD09-01371

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20090421
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  MISCONDUCT
Authority for Discharge:  MARCORSEPMAN 6210.6 (COMMISSION OF A SERIOUS OFFENSE)

Applicant’s Request:  Characterization change to:  HONORABLE
		       Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20050429 - 20050607  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  20050608	Age at Enlistment:  18
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20070723	Highest Rank:  PRIVATE FIRST CLASS
Length of Service:  02  Year(s)  01  Month(s)  16  Day(s)
Education Level:  12	AFQT:  79
MOS:  0341
Proficiency/Conduct Marks (# of occasions):  4.1 (6) / 4.2 (6)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle SS Pistol MM SSDR ICM GWOTSM NDSM

Periods of UA: 20070605 – 20070611 (7 days) 
             CONF: (129 days) dates not found in record

NJP:  2
- 20060602:	Article 113 (Sleeping while on guard duty)
	Awarded: RIR FOP RESTR EPD  Suspended:  RESTR EPD

- 20061214:	Article 92 (Failure to obey a lawful order)
	Awarded: FOP RESTR EPD  Suspended:  FOP

SCM:  NONE

SPCM:  NONE

CC:  NONE

Retention Warning Counseling:  NONE

Administrative Corrections to the Applicant’s DD 214

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

	Block 12a, Date Entered AD This Period, should read: “2005 06 08”
	Block 24, Character of Service, should read: “Under Other than Honorable Conditions”
	Block 29, Dates of Time Lost During This Period, should read “20070605 - 20070611”

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:  	☐

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 September 2001 until Present, 
Paragraph 6210, MISCONDUCT.

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 92 (Failure to obey an order or regulation), Article 113 (Misbehavior of a sentinel) and Article 121 (Larceny). 

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

Applicant’s Issues

1.  The Applicant seeks reinstatement of service benefits.  
2.  The Applicant seeks a reentry (RE) code change for reenlistment opportunities.
3.  The Applicant believes he earned a Combat Action Ribbon.   
4.  The Applicant believes his discharge was improper and inequitable.
5.  The Applicant believes his discharge should be based primarily on the medical recommendation of personality disorder.

Decision

Date:  20090706    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 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 Board did complete a thorough review of the circumstances which led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included two non-judicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation: drove privately-owned vehicle on base although his privileges were suspended for a year) and Article 113 (Misbehavior of sentinel or lookout: sleeping while on duty guarding four military age males at an observation post in Iraq).  The Applicant appeared before a trial by general court-martial (GCM) for violations of the UCMJ: Article 128 (Assault), Article 134 (Indecent acts) and Article 134 (Obstructing justice).  He was found not guilty and was acquitted of all three charges.  Additionally, the command made reference to recent larceny charges (violation of UCMJ: Article 121) committed by the Applicant in a recommendation for his separation.   Based on the offenses committed by the Applicant, his command administratively processed him for separation.  When notified for administrative separation processing, the Applicant waived his rights to consult with a qualified counsel (although he did see counsel: Captain V_), to submit a written statement for consideration by the separating authority, and to request an administrative board.  

Issue 1: (Nondecisional) The Applicant seeks reinstatement of 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.

Issue 2: (Nondecisional) The Applicant seeks a RE-code change for reenlistment opportunities. 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 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.

Issue 3: (Nondecisional) The Applicant believes he earned a Combat Action Ribbon during his 7 months in Iraq.  The Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, for further review on this matter.

Issue 4: (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED. The Applicant contends his discharge was improper and inequitable.  He believes the primary reason for his separation violates the basis of “double jeopardy” in that he can’t be discharged based on charges that were dropped or otherwise dealt with.  The NDRB determined that the Applicant’s trial at a GCM was not relevant or at anytime mentioned in the discharge documentation.  The non-GCM related violations of Article 92 (Failure to obey an order or regulation), Article 113 (Misbehavior of a sentinel) and Article 121 (Larceny –this charge was not adjudicated) are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not refer the Applicant for a court-martial but opted instead for an administrative discharge.  The command decided to primarily discharge the Applicant due to commission of a serious offense (COSO); the NDRB opined it was mainly based on the pending larceny charges.  A Marine may be processed for separation for the commission of a serious military or civilian offense under the following circumstances: the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the UCMJ.  A military or civilian conviction is not required for discharge under this provision.  The NDRB determined that the Applicant’s conduct warranted separation and that the command properly executed his separation from the Marine Corps.  The Applicant’s issue is without merit.  Relief denied.

Issue 5: (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED. The Applicant contends his discharge should be based primarily on the medical recommendation of both the psychiatrist and psychologist who diagnosed him with chronic post-traumatic stress disorder (PTSD), borderline personality disorder and other issues.  The commander stated, “His personality disorder and recent charges of larceny, although not adjudicated, combine to create conditions where his continued presence will adversely affect the good order and discipline of the command.”  The division psychiatrist diagnosed the Applicant on 11 October 2006, with borderline personality disorder (PD), that he is not mentally ill, he’s responsible for his behavior and that the PD existed prior to enlistment and will continue beyond military discharge.  The division psychiatrist made no mention of PTSD in his recommendation.  On 30 January 2007, a psychologist (no further information) made an initial diagnostic impression that the Applicant suffers from PTSD, chronic major depressive disorder, PD not otherwise specified and other observations.  The NDRB could not verify the final diagnosis, and requested the medical records twice (May and August 2009), in order to do so.  The NDRB never received the records.  Despite the lack of complete medical records, the NDRB did note that the Applicant was recommended for separation due to PD and COSO.  The Applicant is advised that when there are two reasons for separation (medical conditions and misconduct), regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Thus, the command action to separate him due to COSO was proper.  Relief denied. 

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, Service Benefits, Reenlistment/RE-code and Post-Service Conduct.

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