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

Docket No. MD10-00820

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20100202
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 6210.6 [COMMISSION OF A SERIOUS OFFENSE]

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

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19951122 - 19960311  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19960312	Age at Enlistment:  18
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  19970501	Highest Rank:  PRIVATE
Length of Service:  01  Year(s)  01  Month(s)  20  Day(s)
Education Level:  12	AFQT:  35
MOS:  2500
Proficiency/Conduct Marks (# of occasions):  4.0 (2) / 3.5 (2)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM

NJP:  1

- 19970212:	Article 86 (Unauthorized Absence: 19961210 - 19961211 (1 day))
	Awarded: FOP RESTR EPD FOP  Suspended:  NONE

SCM:  1

- 19961209:	Article 86 (Unauthorized Absence) - 2 specifications
	Specification 1: 19960818 - 19960916 (29 days)
	Specification 2: 19961003 - 19961004 (1 day)
	Sentence:  FOP CONF 20 days [19961212-19961227 (16 days) served]

SPCM:  NONE

CC ARREST:  1

- 19961123:	Charge: Felony Spousal Battery; San Bernardino County Sherriff’s Office, Ca.  $50,000 Bail.    

CC:  Not found in Record

Retention Warning Counseling:  1

- 19970213:	For my failure to conform to Marine Corps standards, specifically my recent domestic disturbance and NJP for unauthorized absence.  Recommended for Administrative Separation due to Misconduct -Commission of a Serious Offense.  

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 “96AU18-96SEP15, 96OCT03, 96DEC12-96DEC26”

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 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 
31 January 1997 until 31 August 2001.

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 128 – Assault, consummated by battery.

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

Applicant’s Issues

1.	Nondecisional issues: The Applicant seeks an upgrade in characterization of service at discharge in order to better his opportunity for employment with the local County Sheriff’s Office. 
 
2.	Decisional issues:  (Equity) The Applicant contends that he was young and immature at the time of his discharge and that the misconduct was minor and his service should warrant at least a General (Under Honorable Conditions) characterization of his service at discharge.   

Decision

Date:  20110324	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 NDRB 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 for the NDRB’s consideration.  Additionally, the NDRB conducted 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 military at age 18 for a 4-year contract as a communications field radio operator.  He enlisted with a moral waiver to Marine Corps enlistment standards for criminal charges of writing bad checks – dismissed by local authorities.  Throughout his enlistment period, the Applicant received one 6105 retention-counseling warning.  The Applicant’s period of enlistment under review included one nonjudicial punishment for violation of the following Article of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave – Specifically, absenting himself from his unit, without proper authority, for 1 day).  Additionally, the Applicant’s record of service includes a summary court martial for violations of the UCMJ: Article 86 Absence without leave – 2 Specifications: absenting himself from his unit, without proper authority for 29 days and absenting himself from his unit, without proper authority for 1 day).  Furthermore, the Applicant’s record of service included a civilian arrest for Felony Spousal Battery (five counts) by the San Bernardino County Sheriff’s Office.  

The Applicant was notified of the Commanding Officer’s recommendation for administrative separation on 31 March 1997.  The Applicant was advised that the basis for separation was MISCONDUCT (Commission of a Serious Offense) in accordance with paragraph 6210.6 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) and that the command was recommending that the Applicant receive an Under Other Than Honorable characterization of his service at discharge.  The NDRB reviewed the Applicant’s administrative separation package; the Applicant acknowledged – in writing – that he understood that the least favorable characterization of service at discharge that he could receive was Under Other Than Honorable Conditions.  He further acknowledged his rights and elected to waive his right to consult with qualified legal counsel, to request an administrative hearing board, and to submit a statement to the Separation Authority for consideration in his case.  On 31 March 1997, the Command submitted its recommendation for separation to the Separation Authority.  On 23 April, the Separation Authority approved the recommendation for separation - MISCONDUCT (Commission of a Serious Offense) - having determined that the evidence of record supported the basis for discharge and that the characterization of service, as recommended, was warranted.  The Applicant received an Under Other Than Honorable Conditions characterization of his service at discharge and was further advised that he was not recommended for future re-enlistment.                 

Nondecisional Issues - The Applicant seeks an upgrade in the characterization of his service at discharge in order to better his opportunity for employment with the local County Sheriff’s Office.  There is no requirement, or law, that grants re-characterization solely on the issue of obtaining employment or bettering employment opportunities.  As such, this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of obtaining veterans educational benefits; regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  

The Applicant is directed to the Addendum: specifically, the paragraph regarding Employment/Educational Opportunities and the U.S. Department of Veterans Affairs (VA) who determine eligibility for post-service benefits, not the NDRB.  The VA conducts its own determination of eligibility based on service records and input from an applicant upon their request.  The Applicant should refer to the Veterans Administration website (http://www1.va.gov/opa/Is1/1.asp) for additional assistance. 

Issue 1:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that he was young and immature at the time of his discharge and that the misconduct was minor and his service should warrant at least a General (Under Honorable Conditions) characterization of his service at discharge.  In accordance with the MARCORSEPMAN, service members may be separated based on the commission of a serious military or civilian offense when the Commanding Officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court martial for the same or closely related offense.  Furthermore, administrative separation for the commission of a serious military of civilian offense does not require adjudication; however, the offense must be substantiated by a preponderance of evidence.  Violation of Article 128 of the UCMJ - Assault, consummated by a battery - warrants a punitive discharge and confinement for up to 6 months, if adjudicated at trial by special or general court martial.  If aggravating circumstances are charged, the possible confinement increases up to a possibility of 8 years of confinement.  Despite a servicemember’s prior record of service certain serious offenses, even though isolated, warrant separation from the service in order to maintain good order and discipline.  The Applicant’s Commanding Officer recommended separation from the service based on the felony charges developed by the prosecuting District Attorney.  The filing of the formal felony charges established, by a preponderance of the evidence, the basis for separation: Misconduct – Commission of a Serious Offense. 

The Applicant was provided the opportunity to present his case before an administrative discharge board, but waived that right, thus accepting the discharge recommended in the letter of notification.  Based on a review of the evidence and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct properly satisfied the requirements established for separation based the commission of a serious offense as the basis for discharge.  As such, the NDRB determined there was no impropriety because of an error of fact, law, procedure, or discretion with the discharge.  Relief based on propriety, denied.    

Based on the seriousness of the offense and the previous misconduct of record resulting in a nonjudicial punishment and summary court martial, the Command recommended separation with an Under Other Than Honorable characterization of service at discharge.  The Separation Authority reviewed the evidence of record and the gravity of the charges and directed the Applicant be separated for MISCONDUCT (Commission of Serious Offenses) and that he be separated Under Other Than Honorable Conditions.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  

Based on the Applicant’s record of service and the gravity of the felony charges filed against him by the local civilian authorities, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.  The NDRB found the characterization of the Applicant's discharge was equitable and was consistent with the characterization of discharge given others in similar circumstances.  Accordingly, after a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no inequity in the narrative reason for discharge or the characterization of the applicant’s service at discharge.  The NDRB’s vote was unanimous that an upgrade would not be appropriate and that relief is not warranted.  

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 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