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

Docket No. MD09-02580

ex-Pvt, USMC

Current Discharge and Applicant’s Request
Application Received:  20090916
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 6210.2 [MINOR DISCIPLINARY INFRACTIONS]

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

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	19991203 - 19991207  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19991208	Age at Enlistment:  23
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20020220	Highest Rank:  PRIVATE FIRST CLASS
Length of Service:  02  Year(s)  02  Month(s)  13  Day(s)
Education Level:  13	AFQT:  54
MOS:  5831
Proficiency/Conduct Marks (# of occasions):  NFIR / NFIR	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM

Periods of CONF:  NONE

NJP:  3

- 20010129:	Article 86 (Absence without leave – appointed place of duty 0716 – 1100, 20010113)
	Awarded: FOP RESTR   Suspended:  FOP

- 20011004:	Article 92 (Failure to obey order or regulation – written order on 20010822)
	Awarded: RESTR   Suspended:  RESTR

- 20020110:	Article 86 (Absence without leave), 3 specifications
	Specification 1: appointed place of duty on 20011111.
	Specification 2: appointed place of duty on 20011128.
	Specification 3: UA, 20011205 – 20020105, 31 days.
	Awarded: RIR FOP RESTR EPD   Suspended:  FOP

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  6

- 20000525:	For exceeding Marine Corps height and weight standards.
- 20010305:	For unsatisfactory performance while assigned to weight control program.
- 20010823:	For failure to follow written orders and directions.
- 20010129:	For violation of Article 86; resulting in NJP held this date.
- 20011004:	For violation of Article 92; resulting in NJP held this date.
- 20020110:	For violation of Article 86(x3); resulting in NJP held this date.

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 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 requests that his characterization of service be upgraded to General (Under Honorable Conditions) and that he receive an improved re-enlistment code in order to enlist in the Army National Guard.    

2.	Decisional issue:  (Equity) Applicant contends that the characterization of his service as Under Other Than Honorable Conditions was too harsh; his personal family problems were extenuating and mitigating circumstances for his misconduct and should have been considered when determining his overall characterization of service.  

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 decisional issue regarding the equity of his discharge characterization of service 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 a waiver for pre-service drug use.  During his enlistment, the Applicant received 6 retention-counseling warnings per paragraph 6105 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  Furthermore, the Applicant’s record of service was marred with three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ), to include: 

•	Article 86 (Absence without leave: 3 specifications of failure to go to his appointed place of duty; 1 specification of absenting himself from his unit, without authority, and remaining absent for 31 days)
•	Article 92 (Failure to obey order or regulation; specifically, Brig Order 1640.26B). 

Based on the offenses committed by the Applicant, his command administratively processed him for separation pursuant to paragraph 6210.2 of the MARCORSEPMAN – misconduct, minor disciplinary infractions.  When notified of administrative separation processing using the administrative board notification procedure, the Applicant waived his rights to consult with a qualified counsel, to submit a written statement to the Separation Authority, or to request an administrative discharge hearing board.  The Applicant provided no additional documentation for the Board’s consideration.

Issue 1:  (Nondecisional).  The Applicant requests that his characterization of service be upgraded to General (Under Honorable Conditions) and he receive an improved re-enlistment code in order to enlist in the Army National Guard.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other branch of the Armed Forces, and is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records 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 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that the characterization of his service as Under Other Than Honorable Conditions was too harsh; his personal family problems were extenuating and mitigating circumstances for his misconduct and should have been considered when determining his overall characterization of service.  

While the Applicant contends that his family issues were underlying causes of his misconduct, the Applicant’s service record clearly reflects a pattern of willful misconduct, which demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant provided no documented information that he informed his chain of command of any family problems and did not receive the assistance, leave, or help he asked for.  Additionally, the Applicant makes no mention of, nor provides documented proof, if he attempted to use any one of the numerous family support programs sponsored by or for military service members.  These programs and services, such as Family Advocacy, Navy – Marine Corps Relief Society, Red Cross, the Chaplain, or even Navy mental health personnel, if needed, provide services to members of the military, regardless of grade, in times of need.

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 warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s record of service was marred by three nonjudicial punishments for violations of the UCMJ.  Violation of Articles 86 (in excess of 30 days) and Article 92 are serious offenses, punishable by a Bad Conduct or Dishonorable Discharge and up to one year imprisonment.  The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.  In addition to the Applicant’s disregard for command orders and expected standards of conduct, he was counseled in writing for exceeding the Marine Corps height and weight standards and was placed on a formal body composition program in which he made no satisfactory progress.  The Board determined that the discharge was both proper and equitable; an upgrade or change would be inappropriate.

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, Re-enlistment, 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