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

Docket No. MD10-01594

ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20100615
Characterization of Service Received: (corrected) 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: GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: NONE REQUESTED

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	20010320 - 20010422  COG	Active:	USMC 20010423 - 20041007 HON

Period of Service Under Review:
Date of Current Enlistment:  20041008	Age at Enlistment:  21
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20071219	Highest Rank:  SERGEANT
Length of Service:  03  Years  02  Months  12  Days
Education Level:  13	AFQT:  59
MOS:  6672/8411
Proficiency/Conduct Marks (# of occasions):  4.7 / 4.6 (Average Time in Service)	Fitness Reports:  AVAILABLE

Awards and Decorations (per DD 214):	Rifle SS NMCAM (2) GCM (2) GWOTSM SSDR (2) GWOTEM AFEM NDSM  MUC (2) NUC PUC MM (2) CoC (2) LoA

Periods of UA/CONF:  NONE

NJP:  1
- 20070720:	Article 92 (Failure to obey order or regulation, 3 specifications)
	Specification 1: Advised a Marine Corps applicant to conceal disqualifying factors: ADHD and back injury
	Specification 2: Failed to disclose a known medically condition of a Marine Corps applicant
	Specification 3: Tampering with a Marine Corps applicant’s legal matters
	Awarded: RIR FOP  Suspended:  RIR FOP

SCM:  NONE		CC:  NONE

SPCM:  Charges preferred to Applicant on 04 Oct 2007 and subsequently referred for trial by Special Court-Martial.  Charges and specifications were withdrawn in December 2007 upon a completed agreement for administrative separation in lieu of trial.

Retention Warning Counseling:  2
- 20061220:	For failure to show the high degree of financial responsibility expected of a Marine NCO.
- 20070720:	For failure to obey order or regulation.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

Block 13, Remarks, should read: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20010423-20041007”	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 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 issues: The Applicant seeks an upgrade in the characterization of his discharge in order to facilitate better employment opportunities.

2.	Decisional issues: The Applicant contends that the Under Other Than Honorable characterization was inequitable given the documented service in his previous enlistment, his wartime service, and the awards and recognition received while on recruiting duty prior to his misconduct of record.  Additionally, the Applicant contends that his post-service accomplishments warrant consideration.

Decision

Date:  20111013	       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 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 provided no additional documentation to rebut the NDRB’s presumption of regularity in governmental affairs.  However, the Applicant did provide a series of documentation regarding his conduct since discharge for consideration.  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 both equity and propriety.  The Applicant’s enlistment record reflects entry into military service with a waiver to enlistment standards for pre-service illegal drug use - marijuana.  He enlisted under an Open Contract agreement for 4 years of active duty military service and received training as a aviation supply specialist.  Furthermore, the Applicant’s service record documents that he deployed to the North Arabian Gulf in support of Operation IRAQI FREEDOM in 2003.

The Applicant’s record of service documents two Marine Corps Separation and Retirement Manual (MARCORSEPMAN) paragraph 6105 retention-counseling warnings and one nonjudicial proceeding for violation of Article 92 of the Uniform Code of Military Justice (UCMJ) - three specifications related to falsifying applicant enlistment records as a recruiter.  Based on the results of the local command investigation, the Applicant was also relieved for cause from his recruiting duties and his recruiting MOS was voided.  Only 4 days after receiving nonjudicial punishment, the Applicant again engaged in misconduct: willfully disobeying the direct order from his Commanding Officer to have no contact with recruit applicants or potential recruit applicants and further violating recruiting command written orders regarding personal and professional conduct with applicants and future applicants.  The Applicant’s command chose to refer the violations of Articles 90, 92, 107, and 134 to trial by Special Court-Martial.  The Applicant’s military record contains a complete copy of the separation proceedings.  In order to warrant separation in lieu of trial by court-martial, the Applicant must request separation - in writing - for the good of the service to escape charges that have been preferred against the Applicant and referred to trial by a Special Court-Martial or above.  The Applicant was referred to trial by Special Court-Martial in October 2007.  The Applicant submitted a written request for a separation in lieu of trial by court-martial to the separation authority on 15 November 2007.  The request was endorsed by the chain of command, recommending approval with an Under Other Than Honorable Conditions characterization of service; the Separation Authority approved the request on 5 December 2007, directing separation with an RE-4 reentry code (not recommended for reenlistment).

(Nondecisional Issues) – The Applicant seeks an upgrade in the characterization of his discharge in order to facilitate better employment opportunities.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating employment opportunities; as such, the NDRB has no authority to upgrade a discharge solely for this purpose and cannot form a basis of relief. 

(Decisional Issue) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends that the Under Other Than Honorable Conditions characterization was inequitable given the documented service in his previous enlistment, his wartime service, and the awards and recognition received while on recruiting duty prior to his misconduct of record.  Additionally, the Applicant contends that his post-service accomplishments warrant consideration by the NDRB.    

(Propriety) - The Applicant requested administrative separation for the good of the service in order to avoid trial by court-martial; he consulted with and was represented by an appropriately credentialed legal defense counsel throughout the separation process.  The request for separation must contain certain basic requirements - which must be satisfied - before receiving approval by the Separation Authority.  In his request, the Applicant clearly affirmed that his rights were explained to him thoroughly - to include his right to consult with qualified counsel, which he did.  Furthermore, the Applicant admitted his guilt to the charges preferred against him and further certified that he had a complete understanding of the negative consequences of his actions, the narrative reason for his separation, and the likely characterization of service upon separation - Under Other Than Honorable Conditions.  The respondent acknowledged that if discharged with an OTH, it might deprive him of virtually all veterans benefits and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered, or the character of discharge received, may have a bearing.  The request for separation satisfied all the elements established by the MARCORSEPMAN; as such, the command accepted the Applicant’s request.  The NDRB determined that the Applicant was discharged properly from the naval service in accordance with chapter 6419 of the MARCORSEPMAN; accordingly, relief based on propriety is not warranted.

(Equity) - The Applicant contends that his misconduct was an isolated incident in what was otherwise meritorious service as documented by his awards, promotions, and wartime service.  Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the Naval Service in order to maintain good order and discipline.  Violation of Marine Corps Recruiting Orders regarding inappropriate sexual contact with recruiting applicants, or potential applicants, is one of those instances as it unduly harms the reputation of the service and brings discredit upon the armed services.  This process usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge, and possible confinement if adjudicated and awarded as part of a sentence by a Special or General Court-Martial.    

The Applicant contends his post-service conduct warrants consideration for an upgrade to a General (Under Honorable Conditions) characterization of his service.  The NDRB considers outstanding post-service conduct and accomplishment 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.  Besides the Applicant’s statement on the DD Form 293, he provided certificates of his educational accomplishments and educational awards.  The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis.  The NDRB determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief.

The characterization of service at discharge is recognition of a Marine’s performance and conduct throughout a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  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.  However, an Under Other Than Honorable Conditions characterization of service 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.  

Given the facts of the record, the information provided by the Applicant, and the Applicant’s wartime service, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the characterization service, reflected one or more acts or omissions that did constitute a significant departure from the conduct expected of members of the Naval Service and did bring discredit upon the armed services.  The NDRB further determined that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was and remains consistent with the characterization of discharge given others in similar circumstances.  As such, the NDRB determined that the Applicant’s characterization of service at discharge was appropriate.  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 determined that 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 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