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

Docket No. MD09-02579

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20090911
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) 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: HONORABLE
	Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20030228 - 20030608  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20030609	Age at Enlistment:  17 (PARENTAL CONSENT)
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20060825	Highest Rank:  PRIVATE FIRST CLASS
Length of Service:  03  Year(s)  02  Month(s)  17  Day(s)
Education Level:  12	AFQT:  42
MOS:  3381
Proficiency/Conduct Marks (# of occasions):  4.3 (NFIR) / 2.6 (NFIR)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle EX NDSM LoA

Periods of UA:  20040105 – 20040208 (35 days) 
                          20040213 – 20040220 (8 days)
                          20040318 – 20060514 (788 days) 		

Period of CONF:  20060523 – 20060824 (78 days (Pretrial))

NJP:  2

- 20040211:	Article 86 (Absence without leave 20040105 – 20040208, 35 days)
	Awarded: RIR FOP   Suspended:  NONE

- 20040304:	Article 86 (Absence without leave 20040213 – 20040220, 8 days)
	Article 87 (Missing movement 20040213 – 20040220, 8 days)
	Article 92 (Failure to obey order or regulation 20040213 – 20040220, 8 days)
	Awarded: FOP RESTR EPD   Suspended:  NONE

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 29, Dates of Time Lost During This Period, should read “20040105 - 20040208 (35), 20040213 - 20040220 (8), 20040318 - 20060514 (788)”

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:	☐	Rehabilitation/Treatment:	☐	Criminal Records:	☐
	Personal Documentation:	☐	Community Service:	☐	References:	☐
	Department of VA letter:	☐	Other Documentation:	☐
		Additional Statements:
	From Applicant:	☒	From/To Representation:	☐	From/To Congress member:	☐

Pertinent Regulation/Law

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

C.  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 requests an upgrade in his discharge characterization of service in order to be eligible for educational benefits.

2.	Decisional issue: Applicant contends that his misconduct was due to extenuating and mitigating circumstances in his personal life, limiting his ability to fulfill his obligation.  

Decision

Date:  20101019	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 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 Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  

The Applicant identified one decisional issue regarding equity to the Board.  The Board completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service reflects entry into the service on waivers for pre-service drug use (marijuana) and a waiver as a resident legal alien.  During his enlistment, the Applicant received no retention counseling warnings per paragraph 6105 of the Marine Corps Separation and Retirement Manual.  His record of service reflects two non-judicial punishments.  The first non-judicial punishment was for violation of Article 86 of the Uniform Code of Military Justice (UCMJ) (Absence without leave; specifically, absenting himself from his unit and remaining absent, without authority, for 35 days).  The Applicant’s service record included a second non-judicial punishment, which, based on the Regimental Commander’s questioning of its veracity, was not considered in the Board’s discussions or deliberation.

The Applicant’s service record also reflects a violation of Article 86 of the UCMJ (Absence without authority; specifically absenting himself from his unit, without authority, and remaining absent for a period of 788 days).  Based on the serious nature of the charge, and the extensive period of time absent, the command preferred this charge to trial by Special Court-Martial.  The Applicant was placed in pre-trial confinement due to risk of flight and remained in confinement until his request for separation in lieu of trial by court-martial was approved.

The Applicant was provided a qualified defense counsel.  He consulted with his counsel and submitted a written request to the Separation Authority, requesting administrative separation in lieu of a trial by court-martial.  In his request, the Applicant admitted to the misconduct as charged, including all the elements of the charge as specified.  The Applicant acknowledged his understanding of the maximum sentence a court-martial could impose along with the worst characterization of service that the separation authority could attach to his discharge - Under Other Than Honorable Conditions - if approved.  Furthermore, the Applicant fully acknowledged his understanding of the adverse effects of that characterization of service concerning employment and post service benefits.

The Applicant provided service documentation that included completion of training certificates and a certification as a 911 telecommunications operator.  The Applicant should be aware that completion of these items alone does not guarantee an upgrade from an unfavorable discharge.  The Board reviews each discharge on a case-by-case basis; post-service matters are considered only as an aid to the Board to help determine if the misconduct in question was an aberration in his conduct or if it was indicative of the member’s overall character.    

Issue 1:  (Nondecisional).  The Applicant requests an upgrade in his discharge characterization of service in order to be eligible for educational benefits.  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.  This is an issue that the Board cannot form the basis of relief for the Applicant or one the Board does not have the authority to grant the relief the Applicant is petitioning for.  The Applicant is directed to the Addendum, specifically the paragraph concerning VA benefits and Employment/Education.  

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that his misconduct was resultant from extenuating and mitigating circumstances in his personal life, limiting his ability to fulfill his military obligation. 

The Applicant contends his youth and immaturity, coupled with his personal family problems, mitigates the severity of his misconduct.  While he may feel this was the underlying cause of his misconduct, his record of service clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The NDRB determined that the Applicant's youth or age was not a mitigating factor in his misconduct.  The NDRB recognizes that serving in the United States Marine Corps is challenging.  However, there is no evidence in the record, nor did the Applicant provide any evidence, to indicate he attempted to use the numerous services available for service members undergoing personal problems during their enlistment.  The Applicant made no effort to use the services of entities such as the Navy chaplain, medical or mental health professionals, Navy Relief Society, Family Advocacy Programs, the Red Cross, or the State Department to aide in dealing with his personal family issues.

The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Moreover, the Applicant had already been the subject of a Battalion Commander non-judicial punishment for the same offense; as such, he was fully aware of the potential consequences of his actions.  The Applicant opted to absent himself from his unit, fully aware of the consequences for doing so, and did remain absent for 788 days, depriving his unit of a required capability in its combat deployment.

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An Under Other Than Honorable Conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member.  The NDRB determined that the Applicant’s actions constituted a serious and significant departure from the conduct expected of a Marine; an upgrade or change in characterization of discharge would therefore be inappropriate to all those whose service has been honorable.

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 IN LIEU OF TRIAL BY COURT MARTIAL.

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/Educational Opportunities, 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