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

Docket No. MD10-01957

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20090809
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20060703 - 20060717  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060718	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20091104	Highest Rank:  
Length of Service:    Year(s)    Month(s)  17  Day(s)
Education Level:  	AFQT:  59
MOS:  0121
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	   LoA CoC

Periods of CONF:  

NJP:  

- 20080102:	Article  (UA – failure to go to appointed place of duty)
	Article 91 (Insubordinate conduct)
	Awarded:    Suspended:  

- 20080613:	Article  (UA 1745-2215, 20080515)
	Article 92 ((Failure to obey a lawful order)
	Awarded:    Suspended:  

- 20090209:	Article  (UA – Gunners Gym for Section PT)
	Article 92 (Failure to obey a lawful order)
	Awarded:     Suspended:    (1 day)  Suspension vacated Date not on letter

- 20091015:	Article  (UA – PT formation)
	Article  (Disrespectful in language and deportment)
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20070828:	For your absence from appointed place of duty by not reporting to BN Armory at 0330 for transportation to rifle range.

- 20080102:	For unauthorized absence and insubordinate conduct.  On 20071203 you failed to go at the time prescribed to appointed place of duty and was disrespectful to his NCO by arguing and responding “I had business”.  Not eligible for promotion for 3 months.

- 20080613:	For unauthorized absence on 1745-2215, 20080515 and violating BnO 1050.1B and MCO P1020.1B by staying off base in desert utility uniform without a liberty buddy and not signing the liberty logbook.  Not eligible for promotion for 3 months.

- 20081003:	For your failure to qualify on the rifle range for FY 2008.  Specifically, you failed to meet your T/O weapon requirement after being given three separate opportunities.  Additionally, you’re lack of judgment and lack of responsibility contributed to your failure to meet Marine Corps Standards.  On various occasions, the Staff Non-fire in charge had to send someone to your room in the morning because you were late.  Also, on more than one occasion, including qualification day on the last range, you forgot your glasses.

- 20090210:	For absence without leave by not being present during the entire PT session on 20090129 and failure to obey order or regulation by not reporting to appointed place of duty.

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.

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

Applicant’s Issues

1.	Discharge should be upgraded due to unjustified non-judicial punishments (NJP) and medical condition should be included as a factor.
2.	Post-service conduct warrants consideration.

Decision

Date:  20101103		Location: Washington D.C.	 Representation: 

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

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  6105 retention-counseling warnings and  NJPs for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized Absence/failure to go to appointed place of duty, four Specifications), Article 91 (Insubordinate conduct toward a noncommissioned officer, two specifications), and Article 92 (Failure to obey order, two specifications).  It included no summary or special courts-martial.  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant exercised  rights to consult with a qualified counsel and submit a written statement.  He waived his right to request an administrative board.

:  (Decisional) ()  .  The Applicant contends that his discharge should be upgraded due to unjustified NJPs and that his medical condition should be included as a factor contributing to his misconduct.  While assigned to 3d Marine Logistics Group, the Applicant received NJP three times for committing multiple violations of the UCMJ.  He provided a statement from another Marine who claimed to have witnessed the events that led to his second NJP, but was not allowed to testify as his witness at the proceedings.  If the Applicant believed the NJP proceedings were improper he could have filed an appeal; however, no documentation was found suggesting that he did.  Regardless, the Applicant subsequently committed more violations which resulted in another NJP; thereby, establishing a pattern of misconduct.  Following his third NJP the Applicant appeared before an ADSEP Board that suspended his General discharge, thereby giving him a chance to remain on active duty.  Upon reporting to his next command at MCB Quantico, the Applicant committed additional violations of the UCMJ for which he received another NJP.  He was given a mental health evaluation by competent medical authority who diagnosed him with having an adjustment disorder.  However, the psychiatrist gave no indication that his adjustment disorder caused the misconduct or was a mitigating factor.  Instead, he deemed the Applicant fit for duty and recommended that the command proceed with its plan to separate him from the Marine Corps for misconduct.  The Applicant provided post-service documentation indicating that he was receiving treatment for bi-polar disorder.  However, that documentation did not state specifically that his bi-polar disorder existed at the time the misconduct occurred and that it would have caused the misconduct.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct.  The NDRB found the Applicant’s discharge proper and its characterization equitable and consistent with the characterization of discharge given others in similar circumstances.  Relief denied.

:  (Decisional) ()  .  The Applicant provided a personal statement and numerous character witness statements contending that his post-service conduct warrants consideration.  There is no law or regulation that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that 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.  The Applicant did not provide sufficient or credible documentation to determine if his in service conduct was an isolated aberration of his normal conduct.  The Applicant's efforts should have been more encompassing.  Documentation to support an upgrade based on consideration of post-service conduct 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.  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 .

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