ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100730
Characterization of Service Received:  
Narrative Reason for Discharge:  UNACCEPTABLE CONDUCT
Authority for Discharge:  SECNAVINST 1920.6C

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: 

Summary of Service
Prior Service:
Inactive:	USMCR	19961123 - 19970506  	Active:	R 	19970507 - 20000817  

Period of Service Under Review:
Date of Appointment:  20000818	Age at Enlistment:  
Years Contracted:  Indefinite
Date of Discharge:  20060714	Highest Rank:  FIRST LIEUTENANT
Length of Service:    Year(s)    Month(s)  28  Day(s)
Education Level:  	AFQT:  75
MOS:  0302
Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	Rifle  (2) Pistol   (2nd Awd Iraq)  (2)    (Iraq)  

Periods of UA/CONF:  

NJP:  
- 20051025:	Article  (Disobeying a lawful general order by wrongfully using his government travel credit card)
	Article  (False official statement regarding his marital status)
	Awarded: PUNITIVE LETTER OF REPRIMAND   Suspended:  

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “SECNAVINST 1920.6C”

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:	

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

Applicant’s Issues

1.	The Applicant contends government credit card misuse should not have resulted in disciplinary action, which was inconsistent with standards of discipline since less than 50% of similar offenders receive disciplinary action.  
2.	The Applicant contends that his false official statement was actually the most truthful answer.
3.	The Applicant contends his post-service conduct shows his misconduct of record was an aberration.  

Decision

Date:  20111104		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  UNACCEPTABLE CONDUCT.

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   for  of the Uniform Code of Military Justice (UCMJ): Article  (, ) and Article  (, ).  Based on the offenses committed by the Applicant,  command directed him to show cause for retention.  The Applicant’s Board of Inquiry found misconduct was substantiated and recommended separation with a General (Under Honorable Conditions) characterization of service.  The Applicant’s appeals were considered and found to be without merit.  The Convening Authority concurred with the board’s recommendation, and the Applicant was subsequently administratively separated with a General (Under Honorable Conditions) characterization of service for Unacceptable Conduct.

:  (Decisional) ()  .  The Applicant contends government credit card misuse should not have resulted in disciplinary action, which was inconsistent with standards of discipline since less than 50% of similar offenders receive disciplinary action.  The NDRB found the Applicant’s issue to be without merit.  Despite the handling of other cases, the Applicant’s case was investigated, heard at NJP and by a Board of Inquiry, and found to be substantiated as misconduct warranting disciplinary action.  The Applicant’s misconduct falls short of that expected of Marine officers and warrants a General (Under Honorable Conditions) characterization of service.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his false official statement was actually the most truthful answer.  The record does not substantiate the Applicant’s contention.  The Applicant did not tell the truth when asked by his XO as to whether he was divorced.  This false official statement was not only confirmed at NJP and by a Board of Inquiry, but his civilian legal counsel’s statement to the NDRB states that, “First Lieutenant M_ was advised to admit that the statement was not correct, as legally it was not, in an attempt to show humility and acceptance of discipline.”  The legal counsel’s assertion that the statement was not accepted in full context does not change the fact that the Applicant submitted a false official statement.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his post-service conduct shows his misconduct of record was an aberration and not indicative of his overall character.  The Applicant submitted documentation showing he has served honorably in the Army National Guard and has held a government credit card without incident as a government employee, as well as documentation showing steady employment as a government contractor and as a government employee.  The NDRB recognizes the Applicant’s post-service conduct, however, his documentation efforts need to be more encompassing.  The Applicant could have provided documentation as specified in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes a reason to change the characterization or narrative reason.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain UNACCEPTABLE CONDUCT.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

Pertinent Regulation/Law

A.  Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS) effective 15 December 2005 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 Mar 97.

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.

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