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

Docket No. MD09-02541

ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20090915
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) MISCONDUCT
Authority for Discharge: (per DD 214) 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)	19960920 - 19970824  COG	Active:	USMC	19970825 - 20010611  HON
				USMC	20010612 - 20020603  HON

Period of Service Under Review:
Date of Current Enlistment:  20020604	Age at Enlistment:  24
Period of Enlistment:  6 Years  0 Months
Date of Discharge:  20070209	Highest Rank:  SERGEANT
Length of Service:  04  Year(s)  08  Month(s)  06  Day(s)
Education Level:  12	AFQT:  62
MOS:  5811
Fitness Reports:  AVAILABLE/Reviewed

Awards and Decorations (per DD 214):	Rifle MM Pistol SS GCM (2) GWOTSM OSR NDSM NUC LoA (4)

Periods of CONF:  NONE

NJP:  1

- 20040729:	Article 92 (Failure to obey order or regulation), 3 specifications
	Specification 1: Wrongfully operating a motorcycle without a valid operator’s permit
	Specification 2: Violate general order by wrongfully failing to comply with traffic laws and regulations off-base, and failing to comply with Government of Japan and military registration requirements
	Specification 3: Wrongfully failing to wear the proper clothing and equipment while operation or riding a motorcycle
	Article 111 (Drunk driving)
	Awarded: RIR FOP RESTR EPD  Suspended:  FOP

SCM:  1

- 20060607:	Article 86 (UA 0615-0945, 20060317)
	Article 111 (Drunken operation of a vehicle)
	Article 134 (General order), 2 specifications
	Specification 1: Drunk and disorderly
	Specification 2: Indecent language
	Sentence: RIR E-3 RESTR HARD LABOR

SPCM:  NONE

CC:  NONE

Retention Warning Counseling:  6

- 20040624:	For your initial assignment to the Marine Corps Body Composition Program.  Specifically, you failed to properly maintain your body composition standards as required by MCO 6100.12 and BNO 6100.7.  Your actions are unsatisfactory and are not in accordance with the high state of readiness required by the United States Marine Corps.

-20040729:	For your violations of the UCMJ to include Article 92 (3 specifications).  Failure to obey an order or regulation and Article 111 Drunken or reckless driving.  You are not upholding the appropriate standards of conduct in accordance with Marine Corps Core Values.

- 20040823:	For your unsatisfactory performance while assigned to the Marine Corps Body Composition Program (BCP).  Due to insufficient effort, you have not met your weight/body fat reduction goals as prescribed by the medical officer.

- 20060608:	For absence without leave, drunken or reckless operation of vehicle, aircraft, or vessel, disorderly conduct, drunkenness and indecent language.

- 20060629:	For unauthorized absence, failure to obey order or regulation.  On 20060620, you were late calling in at your 1000 restriction check- in.  When you were contacted by Cpl, you stated that you did not have your phone with you.  At 1300, you were twenty-five minutes late returning from chow, when questioned you stated, “That your car had run out of gas.”  This form of conduct is unsatisfactory and will not be tolerated.

- 20060802:	Due to your demonstrated pattern of misconduct, you are hereby advised that you are being processed for administrative separation.

Administrative Corrections to the Applicant’s DD 214

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

	Block 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 970825 UNTIL 020603”

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.  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.

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

Applicant’s Issues
1.	Nondecisional issue: Applicant seeks an upgrade of his discharge from Under Other Than Honorable Conditions to Honorable to enhance his abilities to seek employment.    

2.	Decisional issue: (Equity) Applicant contends that the totality of his service compared to his period of misconduct should have been considered to determine the equity of his characterization of service upon discharge.  Additionally, Applicant contends that personal stress he was dealing with during the period of misconduct was a contributing factor that mitigates the misconduct and his service characterization of Under Other Than Honorable Conditions.

Decision
Date:  20101015	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 Applicant identified one non-decisional issue and one decisional issue to the Board.  The Board completed a thorough review of the circumstances that led to his discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included six 6105 retention counseling warnings and one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation – violation of a lawful order) and Article 111 (Drunken or reckless operation of vehicle - specifically, driving under the influence of alcohol).  Furthermore, the Applicant received one summary court-martial (SCM) for his continued violations of the UCMJ: Article 86 (Absence without leave - specifically, failure to go to his appointed place of duty), Article 111 (Drunken or reckless operation of vehicle - specifically, driving under the influence of alcohol), and Article 134 (2 specifications, Drunk and disorderly conduct and Indecent language). 

The NDRB reviewed the Applicant’s administrative discharge package to determine whether the Applicant was advised of his rights.  When notified of administrative separation using the administrative board notification procedure, the Applicant waived his right to consult with a qualified counsel, waived his right to request a hearing before an administrative board, but did submit a written statement to the Separation Authority.  Additionally, the Applicant provided documentation for consideration by the board that included certificates of training completion while in service; copies of his Honorable Discharge and re-enlistment certificates; a copy of his application and recommendations for the Broadened Opportunity for Officer Selection and Training (BOOST); and, a copy of his Associates Degree.  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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Issue 1: (Nondecisional) -  The Applicant seeks an upgrade of his discharge from Under Other Than Honorable Conditions to Honorable in order to enhance his ability to seek employment.  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; as such, the Board has no basis to provide relief.  
  
Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that the totality of his service, in relation to his misconduct, should have been considered in determining his characterization of service upon discharge.  Additionally, the applicant contends that his personal issues and family stress that he was dealing with during the period of misconduct were contributing factors that partially mitigate his misconduct and should be considered in determining his overall service characterization.  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 submitted no information to rebut the Board’s presumption of regularity in the conduct of governmental affairs regarding his misconduct or the process by which he was separated due to a demonstrated pattern of misconduct.  The Applicant’s service record does reflect an excellent first enlistment contract with above average proficiency and conduct punctuated by selection to the Marine Corps Base Military Police Special Weapons and Tactics team.  Additionally, during this enlistment period, the Applicant was nominated for and subsequently selected to a service-sponsored enlisted commissioning program.  This opportunity included a four-year attendance at an accredited university or college.  Because of this, the Applicant’s DD 214 discharge certificate should reflect “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19970825 UNTIL 20020603” in block 18 – Remarks.  The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected to properly reflect the Applicant’s period of Honorable service, as appropriate  

After a year of preparatory educational training and his first year of college, the Applicant attended USMC Officer Candidate School (OCS).  While at OCS, the applicant’s performance and potential for commissioning came under question.  He was counseled and given an opportunity to correct his noted deficiencies.  Eventually, the Applicant was subject to a Battalion Commander Evaluation Board, which recommended disenrollment with a subsequent recommendation that he not be eligible to re-apply.  The Applicant was disenrolled from the enlisted commissioning program and was re-assigned to the operational forces in his military occupational specialty in order to complete his remaining enlistment contract.  Upon return to the operational forces, the Applicant’s performance and conduct dramatically decreased.  As a non-commissioned officer and enlisted leader of Marines, the Applicant failed to maintain himself within the USMC height and weight standards and was assigned to a command-directed body composition program.  Furthermore, during this period, the Applicant was found guilty at non-judicial punishment for violating multiple base regulations and driving under the influence of alcohol; all regulations he was expected to enforce as a military policeman.  The Applicant’s service record further reflects a second period of misconduct in which the command referred him to trial by Special Court-Martial.  Based upon a pre-trial agreement, the Command withdrew the punitive court proceedings of the Special Court-Martial and the Applicant accepted an administrative Summary Court-Martial and an administrative separation.  Throughout this period of misconduct, the Applicant was provided opportunities to address his alcohol use.  He was afforded substance abuse counseling and was assigned to an intensive outpatient therapy program, which he failed to complete due to his misconduct and use of alcohol while a treatment patient.  Due to his inability to accept his alcohol abuse issues, the Command recommended the Applicant for an intensive inpatient treatment program at a drug and alcohol rehabilitation facility.  The Applicant’s command considered the Applicant’s alcohol abuse in the pre-trial agreement wherein they offered to allow his continued attendance by commuting any confinement adjudged to a local command restriction.

Despite a Marine’s prior record of service, certain serious offenses warrant separation from the naval service in order to maintain the good order and discipline of the command and the service.  The Applicant’s record of service reflects numerous retention warnings, a non-judicial punishment, and a summary court-martial for violation of Articles 86, 92, 111, and 134 of the UCMJ.  Violation of Articles 92, 111, and 134 are each serious offenses, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial.  The command did not pursue a punitive discharge, but instead opted for the more lenient administrative discharge process for misconduct due to a pattern of misconduct vice misconduct due to the commission of a serious offense.

The Applicant contends that his failure at Officer Candidate School and subsequent removal from the Marine Corps Enlisted Commissioning Program, coupled with ongoing emotional family issues partially mitigate his misconduct.  There is no evidence in the record, nor did the Applicant provide any evidence to indicate he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross.  The Applicant may feel that his personal issues were contributory causes to his misconduct; however, his service record clearly reflects a pattern of deliberate and willful misconduct, demonstrating that he was unfit for further service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Board determined that the Applicant’s misconduct reflected a pattern of misconduct, which was a significant departure from the conduct expected of a Marine; as such, an upgrade would be inappropriate.

Summary:  After a thorough review of the available evidence, to include the Applicant’s documents, his summary of service, service record entries, and the 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, Employment, 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 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 – Nonjudicial 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