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

Docket No. MD10-01934

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20100728
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 6210.2 [MINOR DISCIPLINARY INFRACTIONS]

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

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19950706 - 19960623  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19960624	Age at Enlistment:  17 (PARENTAL CONSENT)
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  19980327	Highest Rank:  LANCE CORPORAL
Length of Service:  01  Year  09  Months  04  Days
Education Level:  12	AFQT:  36
MOS:  3381
Proficiency/Conduct Marks (# of occasions):  NFIR / NFIR	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	COC MUC

Periods of CONF:  NONE

NJP:  3

- 19970926:	Article 86 (Absence without leave, 3 specifications)
	Specification 1: Failed to go at the time prescribed on 19970907 to the chow hall
	Specification 2: Failed to go at the time prescribed on 19970908 to the chow hall
	Specification 3: Failed to go at the time prescribed on 19970917 to rifle range detail 
	Awarded: FOP RESTR EPD  Suspended:  FOP

- 19971126:	Article 86 (Absence without leave, failed to go at the time prescribed to the chow hall, 2 specifications) 
	Awarded: RIR FOP RESTR  Suspended:  NONE

- 19980212:	Article 86 (Absence without leave, absented himself from his unit, without authority, on 19980206 and did remain so absent until surrendering himself on 19980207 (1 day))
	Article 90 (Assaulting or willfully disobeying superior commissioned officer, 2 specifications)
	Specification 1: Did disobey the direct order of his superior commissioned officer by wearing civilian attire while on restriction
	Specification 2: Did disobey the direct order of his superior commissioned officer by leaving the designated area of restriction, without permission, while in a restricted status
	Article 134 (Breaking restriction)
	Awarded: RIR, FOP, RESTR       Suspended: NONE
	
SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  5

- 19970321:	For immature attitude, involvement of destruction of government property, poor judgment, irresponsible attitude, undisciplined behavior, conduct unbecoming a Marine, and frequent involvement in conduct that is contrary to the good order and discipline in the battalion

- 19970725:	For misconduct by poor judgment and lack of initiative by repeated failure to be at appointed place of duty

- 19970926:	For multiple absences without leave

- 19971225:	For lack of judgment and maturity by repeatedly being UA from appointed place of duty

- 19980212:	For absence without leave, disobeying orders, and breaking restriction

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.

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

Applicant’s Issues

Decisional Issues: The Applicant contends that her discharge characterization of service was inequitable in that depression and anxiety impaired her ability to make good decisions and that she should have received a medical discharge.

Decision

Date:  20111205	       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 regarding the equity of her discharge characterization of service to the NDRB.  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’s record of service reflects entry into the service without waiver to enlistment standards under a guaranteed contract as a food service specialist.  During her enlistment, the Applicant received five retention-counseling warnings in accordance with paragraph 6105 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  Furthermore, the Applicant’s record of service contained three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ), to include:

•	Article 86 (Absence without leave, 5 specifications of failure to go to her appointed place of duty and 1 specification of absenting herself from her unit, without authority, and remaining absent for 1 day)
•	Article 90 (Willfully disobeyed Superior Commissioned Officer - Failure to obey order or regulation of Commanding Officer non-judicial punishment restriction order, 2 specifications)
•	Article 134 (Breaking restriction, 19980120).

Based on the offenses committed by the Applicant, the command administratively processed her for separation pursuant to paragraph 6210.2 of the MARCORSEPMAN - Misconduct (Minor Disciplinary Infractions).  When notified of administrative separation processing using the administrative board notification procedure, the Applicant waived her rights to consult with a qualified counsel, to submit a written statement to the Separation Authority, or to request an administrative discharge hearing board.  

(Decisional Issue) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends that her discharge characterization of service was inequitable in that depression and anxiety impaired her ability to make good decisions and that she should have received a medical discharge.  In accordance with regulations, the initiation and submission of medical boards are at the discretion of the individual treating physician.  There is no indication in the evidence of record, or in the documentation submitted by the Applicant, that the Applicant was recommended for or being processed for any medical board by proper competent authorities.  Further the evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant.  Additionally, Department of Defense disability regulations do not preclude a disciplinary separation.  SECNAVINST 1850.4 D (1998) stipulates that separation for misconduct will take precedence over potential separations for other reasons.  Therefore, the NDRB found the Applicant’s issue without merit.  The Applicant contends that mental health concerns mitigate her misconduct.  The Applicant’s medical record documents treatment by Mental Health Care Providers beginning as early as May 1997; the treatment records document concerns with feelings of depression, anger, frustration, and a lack of satisfaction with her service.  However, the Applicant was not recommended for any medical or administrative discharge action for these issues and was returned to duty, in a full duty status.  The evidence of record does not demonstrate the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.

When a Marine's service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s record of service included three nonjudicial punishments for violations of the UCMJ.  Violation of Articles 134 and Article 90 are serious offenses, punishable by a Bad Conduct or Dishonorable Discharge and up to one year imprisonment.  The command did not pursue a punitive discharge, but, instead, opted for the more lenient administrative discharge process.  In addition to the Applicant’s disregard for command orders and expected standards of conduct, she repeatedly failed to be at her appointed place of duty.  As such, the NDRB determined that the discharge was both proper and was equitable; an upgrade or change would be inappropriate.  Relief 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 MISCONDUCT.  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 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