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

Docket No. MD11-00327

ex-Cpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20101122
Characterization of Service Received: (corrected) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: (per DD 214) COMPLETION OF REQUIRED ACTIVE SERVICE
Authority for Discharge: (per DD 214) MARCORSEPMAN 1005 [COMPLETION OF REQUIRED ACTIVE SERVICE]

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

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19990218 - 19990307  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19990308	Age at Enlistment:  21
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20030809	Highest Rank:  CORPORAL
Length of Service:  04  Year(s)  05  Month(s)  02  Day(s)
Education Level:  12	AFQT:  42
MOS:  0352
Proficiency/Conduct Marks (# of occasions):  3.9 (NFIR) / 3.7 (NFIR)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle EX (2) Pistol MM SSDR NDSM

Periods UA/CONF:  UA 19991101 - 19991110 (9 days, surrendered); UA 20001220 - 20001226 (6 days, surrendered)

NJP:  5

- 19991206:	Article 86 (UA, absent from his appointed place of duty, 9 days, 19991101-19991110)
	Awarded: FOP RESTR EPD   Suspended:  RESTR EPD (suspend 6 months)

- 20000306:	Article 92 (Failed to obey an order or regulation, 2 specifications)
	Specification 1: Failed to wear the prescribed uniform while on restriction, 20000206 
	Specification 2: Operate a motor vehicle on base while on state driving suspension, 20000221
	Awarded: FOP RESTR EPD   Suspended:  NONE

- 20000607:	Article 92 (Failed to obey a base order by driving a vehicle that was not registered, 20000506)
	Article 111 (Reckless driving on a closed road, running over cones, 20000506)
	Awarded: RIR (to E-1) FOP RESTR EPD   Suspended:  FOP RESTR EPD (suspend 6 months)

- 20000622:	Article 86 (UA, absent from restriction check-in, o/o 20000609)
	Awarded: FOP RESTR EPD   Suspended:  RESTR EPD (suspend 6 months)

- 20010215:	Article 86 (UA, absent from his appointed place of duty, 6 days, 20001220-20001226)
	Awarded: FOP RESTR EPD   Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling: 3

- 20000128:	For receiving NJP for infractions of the UCMJ.  Recently, you have been involved with an altercation in the barracks.  This behavior will not be tolerated.

- 20010215:	For being UA from his appointed place of duty from 20001220-20001226.

- 20010418:	For inability to maintain the standards of conduct and discipline of a United States Marine.  During your tenure as a Marine you have received either company or battalion NJP on five separate occasions.  Your continual pattern of misconduct displays your inability and unwillingness to obey lawful orders and regulations.  Additionally, your refusal to obey regulations has an overall detrimental effect on morale and reduces the combat effectiveness of the unit.  Your violations of the UCMJ run the spectrum (Articles 86, 92, and 111).  You have been given more than ample opportunity in the past to correct this pattern of misconduct.  Due to the wide range of offenses you have committed and your refusal to adhere to any standards of discipline any further violations of the UCMJ, orders and/or regulations of any kind will result in you being processed for separation from the Marine Corps. 

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:  “GENERAL (UNDER HONORABLE CONDITIONS)”

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.  Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION.

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.	The Applicant contends his discharge was inequitable based on his honorable service in the last 2 years of enlistment.

Decision

Date:  20120216	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain COMPLETION OF REQUIRED ACTIVE SERVICE.

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 identified one decisional issue for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included three 6105 counseling warnings and five nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 3 specifications: 0615 on 1 Nov 1999 to 2350 on 10 Nov 1999, 9 days, terminated by his surrender; UA from restriction check-in with Battalion OOD, 9 Jun 2000; and UA from 62 Area Guard Mount, 0731 on 20 Dec to 1315 on 26 Dec 2000, 6 days, terminated by his surrender), Article 92 (Failure to obey an order or regulation, 3 specifications: wore improper uniform while on restriction, 6 Feb 2000; driving with a suspended license, 21 Feb 2000; driving on base with an unregistered vehicle, 6 May 2000), and Article 111 (Drunken driving, drove down closed road and ran over traffic cones, 6 May 2000).  Based on the offenses committed by the Applicant, his command could have opted to refer him to trial by courts-martial or process him for administrative separation.  However, the Applicant’s Commanding Officer chose to allow him to reach his end of active obligated service (EAOS).  The Applicant was separated from the Marine Corps on 9 Aug 2003 with a General (Under Honorable Conditions) discharge due to Completion of Required Active Service.

Issue 1:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was inequitable based on his honorable service in the last 2 years of enlistment.  Per the Marine Corps Separation and Retirement Manual, a Marine may be awarded a General (Under Honorable Conditions) discharge if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record.  Additionally, if a member’s average Proficiency marks are below 3.0 and/or average Conduct marks are below 4.0, the Marine can be awarded a General (Under Honorable Conditions) discharge upon completion of required active service.  A review of the Applicant’s service record reveals his enlistment Proficiency and Conduct marks averages were 3.9 and 3.7, respectively, which qualifies the Applicant for a General (Under Honorable Conditions).  Moreover, his record of service reflects a pattern of inconsistent performance and conduct as evidenced by three 6105 retention warnings and five NJPs (which included 15 days of combined UA, reckless driving, and violation of numerous orders and/or regulations).  Based on the significant misconduct of record and the Applicant’s Pro/Con averages, the NDRB determined that the Applicant’s command was justified in awarding him a General (Under Honorable Conditions) characterization of service upon separation.  Accordingly, the Board found this issue to be without merit and did not provide a basis for which relief could be granted.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries and the completion of required active service discharge process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain COMPLETION OF REQUIRED ACTIVE SERVICE.  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 for additional information.

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