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

Docket No. MD10-00544

ex-LCpl, USMCR

Current Discharge and Applicant’s Request

Application Received:  20091204
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	19990729 - 20000123  To IADT	Active:	USMCR	20000124 - 20000624  HON
	USMCR	20000625 - 20010624  To AD		USMCR	20010625 - 20010930  HON
	USMCR	20011001 - 20011009  To AD		USMCR	20011010 - 20071108  HON

Period of Service Under Review:
Date of Current Enlistment:  20071109	Age at Enlistment:  22
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20090830	Highest Rank:  SERGEANT
Length  of Service:  01 Years   09  Months   22 Days
Education Level:  12	AFQT:  46
MOS:  3043
Proficiency/Conduct Marks (# of occasions):  NFIR (NFIR) / NFIR (NFIR)	Fitness Reports:  AVAILABLE

Awards and Decorations (per DD 214):	Rifle MM GCM GWOTSM NDSM SMCRM COC (3) MCMA(GRAY BELT)

Periods of UA/CONF:  NONE

NJP:  3

- 20080530:	Article 86 , Unauthorized Absence (Failure to report to Bldg 3200 at 0800 on 26 May 2008) 
	Awarded: FOP RIR  Suspended:  RIR

- 20090320:	Article 128, Assault consummated by a battery upon a child under 16 years 
	Article 134, Child endangerment
	Awarded: RIR FOP  Suspended:  NONE

- 20090428:	Article 92, Failure to obey order or regulation 
	Article 134, False or unauthorized pass offenses
	Awarded: RIR FOP  Suspended:  NONE

SCM:  NONE

SPCM:  NONE

CC:  NONE

Retention Warning Counseling:  1

- 20090422:	For being reported by your child’s school for a possible child abuse.  The police questioned your children and they stated Dad spanked with a big spoon. 

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.	The Applicant wants his rank of Sergeant restored.  
2.	The Applicant wants his Reentry (RE) Code changed to one that will allow him to enlist in the Army.  
3.  	The Applicant contends his discharge was improper, because his command discharged him with an Under Other Than Honorable characterization without advising him of his right to challenge administrative [separation] proceedings.
4.    The Applicant contends his rights were violated, because his command’s decision to conduct NJP proceedings based solely on allegations [instead of facts] did not afford him the opportunity to consult with counsel and properly prepare a defense.  He also alleges the command’s Sergeant Major advised him not to file an appeal to the NJP conducted on 20 March 2009, further contending his rights were violated and that the command acted improperly. 
5.	The Applicant contends his command’s hasty execution of the three NJPs over a short period led to him being improperly discharged. 

Decision

Date:  20110210	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 4-1 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall change to SECRETARIAL AUTHORITY.

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’s record of service included  one 6105 counseling warning and three non-judicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (unauthorized absence), Article 92 (failure to obey order or regulation), Article 128 (assault consummated by battery upon a child under 16 years old), Article 134 (child endangerment), and Article 134 (false or unauthorized pass offense).  It did not include any courts-martial for violations of the UCMJ.  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  When notified of administrative separation processing, the Applicant waived his rights to consult with a qualified counsel and request an administrative board.  He exercised his right to submit a written statement.  
 
The Applicant provided the following documentation for the NDRB’s review:  character references, certificate of promotion, Illinois Department of Children and Family Services (DCFS) family service plan, excerpt from the Marine Corp Separation and Retirement Manual, and in-service documentation from his service record book.

Issue 1:  (Non-decisional) The Applicant wants his rank of Sergeant restored.  There is no requirement, or law, that grants re-characterization solely on the issue of restoring rank, and this issue does not serve to provide a foundation upon which the NDRB can grant relief.  This is an issue for the Board for Correction of Naval Records, not the NDRB.
 
Issue 2:  (Non-decisional) The Applicant wants his Reentry (RE) Code changed to one that will allow him to enlist in the Army.  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.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is not authorized to change an RE code.  Only the Board for Correction of Naval Records can make changes to RE codes.

Issue 3:  (Decisional) (Propriety) RELIEF NOT WARRANTED  The Applicant contends his discharge was improper, because his command discharged him with an Under Other Than Honorable characterization without advising him of his right to challenge administrative [separation] proceedings.  However, in his statement to the NDRB, the Applicant indicates he was briefed about the review [ADSEP] board and also informed that choosing whether to have a board would not make a difference in the outcome of his discharge/RE code.  He also indicates that he signed the notification paperwork without completely understanding what he was signing.  The Board found evidence in the Applicant’s service record indicating his command did properly advise him of his right to request a hearing before an ADSEP Board.  Evidence found in his record also indicates he elected not to have a hearing before an ADSEP Board.  Therefore, the NDRB discerned no impropriety in this particular aspect of the discharge.  Relief denied. 

Issue 4:  (Decisional) (Propriety) RELIEF NOT WARRANTED  The Applicant contends his rights were violated, because his command’s decision to conduct NJP proceedings based solely on allegations instead of facts did not afford him the opportunity to consult with counsel and properly prepare a defense.  He also alleges the command’s Sergeant Major advised him not to file an appeal to the NJP conducted on 20 March 2009, further contending his rights were violated and that the command acted improperly.  The NDRB found evidence in the Applicant’s service record clearly stating that, prior to each of the NJP proceedings, he was advised of his rights under Article 31 of the UCMJ.  The evidence also indicates he was advised of his right to demand trial by court-martial instead of accepting NJP as well as his right to consult with a military lawyer.  On each occasion, he acknowledged his understanding of these rights, accepted NJP instead of court-martial, and indicated he had been given an opportunity to consult with a military lawyer.  The Applicant’s statement to the NDRB suggests that although he was given an opportunity to consult with a lawyer, he did not use it.  In addition, NJP is an administrative proceeding that allows for convictions based on preponderance of the evidence.  Trials by court-martial, on the other hand, are judicial proceedings with more stringent rules of evidence that require proof beyond a reasonable doubt.  Therefore, had the Applicant used his opportunity to consult with a lawyer and demanded trial by court-martial in either of the cases, he likely would have been given ample time for extensive consultation with legal counsel to prepare a defense.  Lastly, evidence found in the Applicant’s service record also indicates he elected not to file an appeal to any of the NJPs.  Other than his statement, he provided no evidence or statements from witnesses supporting his allegation that senior enlisted leadership advised him not to file an appeal.  Relief denied.

Issue 5:  (Decisional) (Propriety/Equity) PARTIAL RELIEF WARRANTED  The Applicant contends his command’s hasty execution of the three NJPs over a short period led to him being improperly discharged.
 
- On 30 May 2008, the Applicant received NJP for violating Article 86 of the UCMJ.  Specifically, four days prior to the NJP, on 26 May 2008, he failed to report to his appointed place of duty by 0800.  According to the Applicant, he was 5 minutes late for a detail because of an unexpected change in childcare arrangements.  

- On 18 March 2009, school officials reported to civilian police that the Applicant’s child was possibly being abused because he had bruises on his hand.  Based on evidence found in the Applicant’s service record, the following day, on 19 March 2009, he was advised of his rights under Article 31 of the UCMJ.  On 20 March 2009, he received NJP for violating Articles 128 and 134.  During the proceedings, he explained that he spanked the child for stealing.  According to the Applicant, the NJP proceedings were based solely on allegations and a statement his 5-year-old daughter, who was asleep at the time he was disciplining his son, allegedly gave the police officer.  The Illinois Department of Children and Family Services had not completed its investigation into the allegations when the NJP occurred.  In May 2009, according to the Applicant, he was informed by DCFS that no civil charges would be filed.  DCFS documentation indicated no legal screening was necessary at the time.  At some point after the NJP, the military’s Family Advocacy Program (FAP) at Naval Station Great Lakes, Illinois got involved.  Documentation provided by the Applicant suggests that the FAP substantiated the case, but not until after the NJP had been conducted.  On 29 September 2009, over six months after the NJP and one month after the Applicant was discharged, the FAP reviewed the case and recommended that it be closed, resolved.  

- On 28 April 2009, the Applicant received NJP for violation of Articles 92 and 134 of the UCMJ.  The Naval Station Great Lakes Police Department discovered, through a computerized record check, that the registration on the Applicant’s vehicle had expired.  He was consequently issued a traffic citation and his on-base driving privileges were suspended.  According to the Applicant, DCFS had ordered him not to leave the state.  Therefore, he could not travel to Louisiana to renew his Louisiana vehicle registration.  His driving privileges were eventually restored.  However, three weeks after his privileges were restored, his command still gave him NJP for the violation rather than accept that the matter probably could have been adjudicated in traffic court.  

The NDRB concluded that the mere allegations of child abuse and neglect prompted the command to pursue efforts to justify processing the Applicant for ADSEP.  In doing so, the command acted hastily and prematurely when it chose to punish the Applicant based on the allegations, which still had yet to be substantiated.  To justify a discharge for pattern of misconduct, the command included the two NJPs conducted on 30 May 2008 and 28 April 2009 involving minor violations of Articles 86, 92, and 134 of the UCMJ.  It also included the NJP conducted on 20 March 2009 for the potentially serious violation of Articles 128 and 134 of the UCMJ.  The NJPs of 30 May 2008 and 28 April 2009 are relatively minor incidents that would not normally warrant a discharge characterization of Under Other Than Honorable Conditions.  The NJP of 20 March 2009, on the other hand, involved major and very serious allegations that could and should have been thoroughly investigated before adjudicated at NJP to ensure protection of the rights of all parties involved.  Therefore, based on equitable grounds, the Board voted 4 to 1 to grant partial relief by upgrading the characterization to General (Under Honorable Conditions) and changing the narrative reason to Secretarial Authority.  Full relief was not granted because some misconduct existed and although the Applicant provided some creditable documentary evidence in addition to his written statements, it was not enough to grant full relief for an upgrade to 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 but not equitable. Therefore, based on equitable grounds, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall change to SECRETARIAL AUTHORITY.

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, Automatic Upgrades, 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