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

Docket No. MD10-02312

ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received:  20100924
Characterization of Service Received: (corrected) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (corrected) 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: HONORABLE OR GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19970430 - 19970722  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19970723	Age at Enlistment:  18
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  19991223	Highest Rank:  PRIVATE FIRST CLASS
Length of Service:  02  Year(s)  05  Month(s)  01  Day(s)
Education Level:  12	AFQT:  70
MOS:  0311
Proficiency/Conduct Marks (# of occasions):  4.3 (3) / 4.3 (3)	Fitness Reports:  NOT APPLICABLE
Awards and Decorations (per DD 214):	NONE

Periods of UA:  19990120 - 19990122 (2 days); 19990309 - 19990629 (112 days)
Period of CONF:  NONE

NJP:  3

- 19980925: 	Article 86 (UA), 2 specifications
	Specifications 1 and 2: Fail to go at time prescribed to “Color Guard commitments at 0850, 1990917 and 1050, 19980917
	Article 92 (Disobeyed lawful order)
	Awarded: FOP RESTR EPD  Suspended:  FOP  Suspension vacated 19990120

- 19990120:	Article 92 (Violated MCO 1700.22D by wrongfully purchase alcohol while under the legal age)
	Article 121 (Wrongfully appropriate an Armed Forces ID card of a Cpl)
	Awarded: FOP RESTR EPD  Suspended:  FOP  Suspension vacated 19990126

- 19990208:	Article 86 (UA 19990120 - 1990122 (2 days))
	Awarded: RIR RESTR  Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE	Retention Warning Counseling:  NONE

Administrative Corrections to the Applicant’s DD 214

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

	Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”
	Block 28, Narrative Reason for Separation, should read: “IN LIEU OF TRIAL BY COURT MARTIAL”
	Block 29, Dates of Time Lost During This Period, should read “(2) 990120-990122; (112 ) 990309-990628”

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 P1900.16E), effective 18 August 1995 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 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 characterization of service in order to receive medical benefits.

2.	Decisional issues: (Equity) The Applicant contends that his youth and immaturity were mitigating factors in his misconduct.  Additionally, the Applicant contends that his medical condition, post-motor-vehicle accident, contributed to his misconduct.  As such, the Applicant contends that he warrants consideration for upgrading his discharge to General (Under Honorable Conditions) or Honorable Conditions.

Decision

Date:  20110405   	    DOCUMENTARY REVIEW	   Location: Washington D.C.	  Representation: Private representative

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 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 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 provided additional documentation for consideration by the NDRB to include character reference letters, a statement of evaluation from private counsel, and a letter of reference from the Applicant’s counselor.

The Applicant entered military service at age 18 with a waiver to enlistment standards for admitted pre-service drug use (marijuana).  The Applicant enlisted with a guaranteed contract for Infantry and a promotion to E-2 as a result of Junior ROTC training.  The Applicant’s official record of service includes no 6105 retention-counseling warnings and three nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ) as follows: 

•	Article 86 (Unauthorized Absence - failure to go to prescribed place of duty, 2 specifications) 
•	Article 86 (Unauthorized Absence - absenting himself from his unit without authority, 1 specification)
•	Article 92 (Disobedience of a Lawful Order or Regulation, 2 specifications)
•	Article 121 (Larceny - wrongful appropriation of an Armed Forces Identification Card from an NCO).    

The Applicant’s service record also includes a period of unauthorized absence commencing on 09 March 1999.  On 04 April 1999 the Applicant was officially declared a deserter from the armed forces and was dropped administratively from the unit’s rolls.  A Form DD-553 (Deserter/Absentee Wanted by the Armed Forces) warrant for arrest was issued to federal, state, and local law enforcement authorities requesting his apprehension.  The Applicant’s service record documents the date of his return to the control of the armed forces by surrendering himself to military authorities on 29 June 1999, after 112 days of unauthorized absence.  The Applicant’s official military service record does not contain a copy of his discharge package.  However, at some point prior to his discharge, the Applicant’s command determined that his misconduct was serious enough in nature to warrant punitive, vice administrative, action; therefore, they preferred formal charges against the Applicant to trial by court-martial.  The Applicant was afforded the right to consult with counsel.  The Applicant requested administrative separation for the good of the service to escape the punitive action of a trial by court-martial.  

The NDRB presumed regularity in governmental affairs in the absence of a complete separation package.  As the Applicant requested separation in lieu of trial by court-martial, certain administrative requirements are mandated as part of the process.  Among these, the Applicant was provided a detailed defense counsel.  As a function of the separation in lieu of trial process, the Applicant must declare that he understood the elements of the offenses charged against him.  Furthermore, the Applicant must admit - in writing - that he was guilty of the offenses charged and that he fully understood that if he was discharged under other than honorable conditions, that discharge characterization of service may deprive him of virtually all veterans benefits.  The Separation Authority approved the Applicant’s request for administrative separation in lieu of trial by court-martial; he was subsequently discharged with an Under Other Than Honorable Conditions characterization of service and an RE-4 reentry code.

Issue 1:  (Non-Decisional).  The Applicant seeks an upgrade in order to be eligible for Department of Veterans Affairs medical treatment.  There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans benefits.  As such, this issue does not serve to provide a foundation upon which the Board can grant relief.

Issue 2: (Decisional) (Propriety/Equity) NO RELIEF WARRANTED.  The Applicant contends that his youth and immaturity were mitigating factors in his misconduct.  Additionally, the Applicant contends that his medical condition, post-motor-vehicle accident, contributed to his misconduct.  As such, the Applicant contends that he warrants consideration for upgrading his discharge to General (Under Honorable Conditions) or Honorable Conditions.  The NDRB completed a thorough review of the Applicant’s discharge process and determined his discharge met the pertinent standards of equity and propriety.  In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in order to escape the punitive possibilities of a trial by special court-martial.  He consulted with qualified counsel and was advised fully of the implications of his request.  The Applicant further acknowledged that he understood the elements of the offense for which he was charged and admitted he was guilty of violating Article 86 of the UCMJ.  

Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain good order and discipline.  There is credible evidence in the record that the Applicant violated multiple articles of the UCMJ.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The NDRB recognizes that many of our service members are young at the time they enlist for service, but most still manage to serve honorably.  While it is understood that some members may be less mature than others may, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for 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.  In the issues specific to this case, the NDRB found no connection between the Applicant’s misconduct and his medical condition.  The Applicant’s record of misconduct began before his medical condition and continued after competent medical authorities were treating his condition.  The Applicant’s medical record review indicates his only complaints to be chronic lower back pain.  This and his prescribed use of Percocet resulted in his temporary re-assignment of duties.  Prior to the Applicant’s desertion, medical doctors had recommended the discontinuance of Percocet due to a possible dependence with abuse concern.  

DoD disability regulations do not preclude a disciplinary separation.  SECNAVINST 1850.4E stipulates that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  In accordance with regulations, the initiation and submission of medical boards are at the discretion of the individual physician.  There is no indication in the evidence of record or in the documentation submitted by the Applicant, that the Applicant was being recommended for - or processed for - a medical board.  Therefore, the NDRB found the Applicant’s issue to be without merit.  Relief denied           

The Applicant’s record of service contained a nonjudicial punishment and separation in lieu of trial by court-martial for absenting himself from his duties and remaining absent for 114 days, until surrendering himself to military custody.  These actions had a direct bearing on the characterization of service received at discharge.  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.  Based on the seriousness of the offenses committed, the Applicant’s length of service, and his in-service documentation, the NDRB determined that the Applicant’s deliberate and willful misconduct involved one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval service.  Accordingly, relief, as requested, 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 Board found 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