Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: lois.rojas
Company: NCPB

Docket No. MD10-02310

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20100921
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) MILITARY PERSONNEL SECURITY PROGRAM
Authority for Discharge: (per DD 214) MARCORSEPMAN 6212 [security]

Applicant’s Request:	Characterization change to: HONORABLE
	Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19970805 - 19970907  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19970908	Age at Enlistment:  20
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20010418	Highest Rank:  PRIVATE FIRST CLASS
Length of Service:  03  Years  07  Months  11  Days
Education Level:  12	AFQT:  38
MOS:  3531
Proficiency/Conduct Marks (# of occasions):  3.8 (6) / 2.5 (9)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM

Periods of Unauthorized Absence:  19980929 - 19990120 (114 days, terminated by apprehension) 
                                                         19990928 - 19991028 (30 days, terminated by apprehension) 

NJP:  NONE	SCM:  NONE		CC:  NONE	Retention Warning Counseling:  NFIR

SPCM:  2
- 19990303:	Article 86 (Absent without leave - did absent herself from her command, without authority, on 19980929 and did remain so absent until apprehended on 19990120 - 114 days UA)
	Sentence: RIR E-1, CONF 30 days (pretrial 19990121 - 19990302, 41 days) 
	Convening Authority Action:  Sentence is approved and ordered executed

- 19991216:	Article 86 (Absent without leave - did absent herself from her command, without authority, on 19990928 and did remain so absent until apprehended on 19991028 - 31 days)
	Sentence: BCD, RIR E-1, CONF 49 days (pretrial 19991101 - 19991215, 45 days) 
	Convening Authority Action:  The finding of Guilty and the sentence are DISAPPROVED.  The charge is dismissed.  All rights, privileges, and property, of which the accused has been deprived by virtue of the findings and sentence, will be restored.

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

Nondecisional issues: The Applicant seeks an upgrade in the characterization of her service at discharge in order to facilitate access to Department of Veterans Affairs (VA) medical and educational benefits.

Decisional issues:  The Applicant seeks an upgrade to the characterization of her service at discharge to Honorable, contending that it was inequitable and is not reflective of her character, as she has remained out of trouble since discharge.

Decision

Date:  20120112	           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 MILITARY PERSONNEL SECURITY PROGRAM.

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 NDRB completed a thorough review of the circumstances that led to the discharge, and the discharge process, to ensure that the discharge action met the pertinent standards of equity and propriety.

The Applicant entered military service at age 20 on a four-year enlistment on an Open Contract.  The Applicant’s enlistment record reflects entry into military service with a single waiver to enlistment and induction standards due to not meeting the minimum required AFQT score.  The Applicant’s record of service included no paragraph 6105 retention-counseling warnings or nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ).  However, the Applicant’s enlistment record reflects two trials by special court-martial related to periods of unauthorized absence.  In the Applicant’s first trial, she was found guilty of violation of Article 86 - having absented herself from her unit, without authority, and remained absent for a period of 114 days, until her absence was terminated by apprehension.  The trial judge awarded the Applicant a reduction in rank to E-1/Private and 30 days of confinement.  Having served her awarded sentence, the Applicant was returned to duty with her command.  Less than six months later, the Applicant again absented herself from her unit, without authority, and did remain absent until being apprehended by military authorities 30 days later.  The Applicant was again referred to trial by special court-martial.  In accordance with a signed pre-trial agreement, the Applicant requested trial before a military judge alone and pled guilty to the charge as specified.  Based on the guilty plea and testimony, the military judge found the Applicant guilty and adjudged a Bad Conduct Discharge, confinement for 49 days, and reduction to Private/E-1.  Having completed her sentence due to pre-trial confinement credit, the Applicant was placed on appellate leave, awaiting mandatory appellate review of her Bad Conduct Discharge.  During the Applicant’s second special court-martial, she was arraigned on a charge of having absented herself from her unit, without authority, for 31 days.  However, during the conduct of the trial, it was determined that military police, not civilian legal authorities, had apprehended the Applicant - as such, her period of unauthorized absence had ended one day sooner than that specified on the charge sheet.  Accordingly, the specified charge was amended during the court-martial to reflect the date the Applicant returned to military custody, which resulted in only 30 days of unauthorized absence, not 31 days. 

In accordance with the Manual for Courts Martial, unauthorized absence in excess of 30 days is a serious offense, punishable by punitive discharge (Bad Conduct Discharge) and up to one year and 6 months of confinement if adjudged and awarded as the result of a special or general court-martial.  However, the maximum punishment for an absence of 30 days or less does not authorize a punitive discharge and allows for only up to 6 months confinement.  In order to be eligible for a Bad Conduct Discharge, the Applicant’s absence must have exceeded 30 days - it did not.  Unfortunately, the defense counsel, government counsel, military judge, and the command at the time of the trial failed to notice this discrepancy.  During the Staff Judge Advocate review of the Court-Martial Proceedings, this error in fact was discovered.  The Applicant was convicted based on her pleading guilty in accordance with the pre-trial agreement, which was entered into mistakenly.  Given the charge as specified was wrong, the pre-trial agreement was invalid, and the admission of guilt was tainted.  As such, the Convening 

Authority took corrective action: He disapproved the findings of guilt and the sentence and dismissed the charge.  Furthermore, the Convening Authority restored all rights, privileges, and property of which the Applicant had been deprived by virtue of the findings and sentence.  Subsequently, the Applicant was recalled to duty from her appellate leave status, her record was restored and all loses corrected and was then administratively separated in accordance with the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) - paragraph 6212 (MILITARY PERSONNEL SECURITY PROGRAM).      

Non-decisional Issue - The Applicant seeks an upgrade to her discharge characterization of service in order to achieve eligibility for Department of Veterans Affairs (VA) medical and education benefits.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  The Applicant is directed to the Addendum, specifically, the paragraph regarding the U.S. Department of Veterans Affairs (VA) who determine eligibility for post-service benefits, not the NDRB.

 Decisional Issue (Equity)  RELIEF NOT WARRANTED.  The Applicant seeks an upgrade to the characterization of her service at discharge to Honorable, contending that it was inequitable and is not reflective of her character, as she has remained out of trouble since discharge.  The Applicant contends her post-service conduct warrants consideration for an upgrade to Honorable.  There is no law or regulation to upgrade an unfavorable discharge based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  However, the NDRB does consider 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.  The Applicant failed to provide any documentation and evidence on her behalf to support a post-service conduct review.  The Applicant’s statements alone, without sufficient documentary evidence, are not enough to establish a basis of relief.  Relief not warranted.

The Applicant contends that her discharge characterization was inequitable.  In accordance with the MARCORSEPMAN, an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  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 determined the Applicant’s conduct, which forms the primary basis for determining the character of her service at separation, did document one or more acts or omissions (2 periods of unauthorized absence [114 days and 30 days] within six months of each other) and does constitute a significant departure from the conduct expected of members of the Naval Service.  Accordingly, by a vote of 5-0, the NDRB determined that the awarded characterization was appropriate.  Relief not warranted.  

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 as issued.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MILITARY PERSONNEL SECURITY PROGRAM.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the discharge.  The Applicant is directed to the Addendum for additional information.
Pertinent Regulation/Law

A.  Paragraph 6212, SECURITY, 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.

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