Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: chananuch.reed
Company: NCPB

Docket No. MD10-01133

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20100316
Characterization of Service Received: (corrected) 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)	20061228 - 20070611  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20070612	Age at Enlistment:  17 (PARENTAL CONSENT)
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20090814	Highest Rank:  PRIVATE FIRST CLASS
Length of Service:  02  Year(s)  02  Month(s)  03  Day(s)
Education Level:  12	AFQT:  36
MOS:  0341
Proficiency/Conduct Marks (# of occasions):  NFIR  / NFIR 	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle SS, ICM (w/1 Bronze Star), SSDR, GWOTSM, NDSM,

Periods of UA:  None
Period of Confinement:  NONE

NJP:  3

- 20080207:	Article 86 (Absent without leave; specifically, failure to be at appointed place of duty – 1400 29 Jan 2008)
	Article 121 (Larceny)
	    Specification 1 – did, on or about 27 Jan 2008, steal an ATM card belonging to a fellow Marine
	Specification 2 – did, on or about 27 Jan 2008, steal US Currency, a value of $400.00, from the bank account of a fellow Marine
  	Specification 3 – did, on or about 27 Jan 2008, steal US Currency, a value of $400.00, from the bank account of a fellow Marine
	Awarded: RIR to E-1, RESTR EPD, FOP  Suspended:  NONE

- 20080826:	Article 113 (Misbehavior of a Sentinel; specifically, on or about 23 Aug 2008, while assigned to RCT-5, during a time of war, at Patrol Base Rio Grande, while receiving special pay under USC, Title 37, sect 310, while on post as a sentinel at post number 2, was found sleeping on post)
	Awarded: RESTR EPD FOP 	Suspended:  RESTR for a period of 3 months, unless sooner vacated. 

- 20090401:	Article 92 (Failure to obey orders or regulations)
	    Specification 1: Failed to obey lawful order of Co Cmdr to remain in local area for weekend liberty
	    Specification 2: Failed to obey II MEFO 1050.1C by violating weekend liberty boundary limits 
	Article 107 (False Official Statement)
	Specification 1: Did, with intent to deceive Co 1stSgt, did make an official statement, which he knew to be false, regarding his location while on liberty
	Specification 2: Did, with intent to deceive his Plt Sgt (SSgt), did make an official statement, which he knew to be false, regarding his location while on liberty
	Awarded: RIR RESTR EPD FOP  Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  3

- 20080214:	For my recent Bn Level NJP for violation of Articles 86 and 121 of the UCMJ.  Advised to follow all orders and regulation and be scheduled for an initial interview and screening at the Alcohol Treatment Facility and complete recommended classes.  Failure to take corrective action and any further violation of the UCMJ may result in judicial or adverse administrative action to include administrative separation.   

- 20080825:	For recent company level NJP for violation of Article 113 of the UCMJ.  Advised to review his general orders and take the security of your patrol base with the utmost seriousness, abide by all order and regulations.  Failure to take corrective action and any further violation of the UCMJ may result in judicial or adverse administrative action to include administrative separation.   

- 20090401:	For violation of Article 92 (x2), and 107 (x2) of the UCMJ.  You Recevied Bn NJP for these violations.  Advised that you are being processed for administrative separation for a pattern of misconduct.

Administrative Corrections to the Applicant’s DD 214

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

        Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”

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 P1900.16F), 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.

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 92, 107, 113, and 121.

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

Applicant’s Issues

1.	Nondecisional issue:  The Applicant seeks an upgrade in the characterization of his service at discharge in order to enhance his opportunities for more gainful employment and receive Veterans Affairs benefits for educational assistance.  

2.	Decisional issue: The Applicant contends that he served his country honorably in Iraq and was young and immature at the time of his misconduct, which lessens or mitigates his responsibility for his actions and, as such, warrants consideration for an upgrade in the characterization of his discharge.   

Decision

Date:  20110429           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 did not identify any decisional issues for the NDRB’s consideration; however, the NDRB 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 entered military service at age 18 (17 with parental consent upon entering the Delayed Entry Program) on a four-year enlistment contract as an Infantry Mortarman.  This enlistment required a waiver to enlistment standards due to pre-service drug usage (marijuana).  The Applicant’s record of service includes three 6105 retention-counseling warnings and three nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ) as follows: 
•	Article 86 (Absent without leave; specifically, failure to be at his appointed place of duty when required)
•	Article 92 (Failure to obey a lawful order or regulation – 2 specifications; specifically, failing to obey a lawful order from his commanding officer and of violating II MEF Order 1050.1C (liberty boundaries)
•	Article 107 (False official statement; 2 specifications of knowingly providing false information with an intent to deceive to his chain of command)
•	Article 113 (Misbehavior of a Sentinel; specifically, on or about 23 Aug 2008, while assigned to RCT-5, during a time of war, at Patrol Base Rio Grande, while receiving special pay under USC, Title 37, sect 310, while on post as a sentinel at post number 2, was found sleeping on post.
•	Article 121 (Larceny – 2 specifications; did steal an ATM card from a fellow Marine and did steal US currency in the amount of $400.00 from the bank account of a fellow Marine).
 
The Applicant completed 2 years and 2 months of his four-year obligated service contract.  He was discharged involuntarily from the Marine Corps due to Misconduct, specifically, for having established a pattern of misconduct as defined by paragraph 6210.3 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  The Separation Authority reviewed the Command’s recommendation for separation; he determined that the Applicant’s documented record of service established the minimum requirements for discharge based on a pattern of misconduct; that separation in the Applicant’s case was warranted; and further, that the proposed characterization of service - Under Other Than Honorable Conditions - was warranted.  On 10 August 2009, the Separation Authority directed the Applicant’s discharge for the reason as stated and further specified that he receive an RE-4 reenlistment code - not recommended for reenlistment.  

The NDRB reviewed the Applicant’s discharge package.  On 04 June 2009, the Applicant was advised of his rights pursuant to administrative separation.  He acknowledged understanding of the basis for separation (Misconduct – Pattern of Misconduct) and the proposed recommendation for a characterization of service at discharge of Under Other Than Honorable Conditions.  The Applicant chose to waive his right to consult with qualified military counsel or seek an administrative discharge hearing board to present his case.  Additionally, he declined to provide written matters for the Separation Authority’s consideration.  The Applicant did not submit any formal evidence or documentation to rebut any presumption of regularity in governmental affairs by the NDRB or to challenge or refute any of his misconduct. 

Issue 1: (Nondecisional).  The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate better employment opportunities and Department of Veterans Affairs education assistance program benefits.  There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans educational benefits.  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 enhancing employment or educational opportunities.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.

Issue 2:  (Decisional Issue) (Propriety/Equity) - RELIEF NOT WARRANTED.  The Applicant contends that he served his country honorably in Iraq and was young and immature at the time of his misconduct, which lessens or mitigates his responsibility for his actions and, as such, warrants consideration for an upgrade in the characterization of his discharge.   

The NDRB 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.  In accordance with the MARCORSEPMAN, a service member may be discharged involuntarily when their conduct or performance of duties meets one of the established reasons for separation.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps.  The Separation Authority and the Staff Judge Advocate reviewed the evidence as contained in the Applicant’s recommendation for separation.  They determined that the Applicant’s misconduct of record supported the conclusion that the Applicant had an established pattern of misconduct, that the Applicant had been counseled appropriately regarding retention and failure to take corrective action, that the retention warning was violated, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted.  The Applicant’s separation was administrative in nature, not punitive.  Although his discharge was the result of misconduct, it was not part of a punitive punishment awarded at a trial by court-martial, which could have resulted in a substantially more harsh discharge.  The NDRB determined that the separation was proper as issued and that no change to the narrative reason for separation is warranted; as such, relief based on issues of propriety is denied.    

A service member’s characterization of service is founded on the recognition of his performance and conduct and is not necessarily dependent upon the narrative reason for separation.  When the quality of a member’s service has met the standards of acceptable conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  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.  The NDRB recognizes that many of our service members are young at the time they enlist for service, but most still manage to serve honorably.  While we understand some members may be less mature than others may be, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct.    

The Applicant’s record of performance and conduct reflected a documented pattern of misconduct.  Additionally, the Applicant’s service record documents that he was counseled - formally - regarding possible separation if he failed to take corrective actions and comply with the expected standards of conduct of a Marine.  After reviewing the Applicant’s official service record, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the characterization of his service, documented conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.  As such, the NDRB determined that the characterization of service at discharge was appropriate, was equitable, and was consistent with the characterization of discharge given others in similar circumstances.  The NDRB determined that an upgrade would be inappropriate; accordingly, relief is denied. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the NDRB 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