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

Docket No. MD11-01586

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20110614
Characterization of Service Received: (corrected) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (corrected) MISCONDUCT
Authority for Discharge: (per DD 214) MARCORSEPMAN 6210.3 [PATTERN OF MISCONDUCT]

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

Summary of Service

Prior Service:
Inactive:	USA (DEP) Dates not found                        Active: USA  19970619 - 19980518  (GEN / UNSAT PERFORMANCE)
	USMCR (DEP) 19990430 - 1990504  COG

Period of Service Under Review:
Date Current Enlistment Began:  19990505	Age at Enlistment:  19
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20020425	Highest Rank:  PRIVATE FIRST CLASS
Length of Service:  02  Year(s)  11  Month(s)  21  Day(s)
Education Level:  12	AFQT:  53
MOS:  0121
Proficiency/Conduct Marks (# of occasions):  3.8 (8) / 3.8 (8)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM, CoC, LoA

Periods of UA/CONF:  UA:  20020123-20020124 (2 days) /Periods of CONF: NONE

NJP:  2

- 20020131:	Article 92 (Failure to obey a lawful order)
	Awarded: FOP RESTR  Suspended:  FOP

- 20020328:	Article 134 (Break restriction)
	Awarded: RIR FOP RESTR  Suspended:  NONE

SCM:  1

- 20010116:	Article 134 (General order, 2 specifications)
	Specification 1: Falsely presented, to AT&T, Pilgrim Telephone, a Navy Federal Credit Union Visa Classic Card, not of her own, for network telephone service, NBS, WTN, and ATI, a value of $338.10, to wit: long distance telephone services
	Specification 2: Falsely pretend to WWW.XYZ9.com that she was an authorized user of LCpl M_’s Navy Federal Credit Union Visa Classic Card, then knowing that the pretense was false, and by means thereof, did wrongfully obtain WWW.XYZ9.com services of a value of about $67.40, to wit: adult entertainment telephone services or membership to an adult internet web site
	Sentence: RESTR, EPD, RIR E-1

SPCM:  NONE		CC:  NONE

Retention Warning Counseling:  3

- 20020211:	For your blatant disregard for orders in which you were directed on three different occasions to mail out the CO’s Newsletter, which you failed to do; you were involved in a domestic violence incident on 20020122, where you were identified as the aggressor, which led to your arrest by civilian law enforcement authorities.  You are advised that these actions will not be tolerated and are not acceptable as a Marine.

- 20020327:	For your recent NJP held on 20020326 for Article 134.

- 20020327:	For my recommendation for administrative separation per Marine Corps Order P1900.16F (Marine Corps Separation Manual) paragraph 6210.3 by reason of pattern of misconduct.

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: “MISCONDUCT”

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 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

Decisional issues:  The Applicant seeks an upgrade in the characterization of her service at discharge to General (Under Honorable Conditions) contending that she now suffers from Post-Traumatic Stress Disorder (PTSD) and is now disabled with a service-connected disability.

Decision

Date:  20111005	            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 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 entered military service at age 18 (17 with parental consent upon entering the Delayed Entry Program) on a four-year enlistment contract in the United States Army; she was discharged approximately one year later due to unsatisfactory performance after amassing 3 nonjudicial punishments and revealing a history of illegal drug use that included LSD, marijuana, and amphetamines.  The Applicant enlisted in the Marine Corps in May 1995 with a waiver for her previous military service separation from Headquarters, Recruiting Command.  The Applicant’s record of service during her current enlistment includes three paragraph 6105 retention-counseling warnings, two nonjudicial punishments, and a summary court-martial for violations of the Uniform Code of Military Justice (UCMJ) as follows: 
•	Article 92 (Failure to obey a lawful order or regulation)
•	Article 134 (Breaking restriction) 
•	Article 134 (Falsely presenting herself as someone else and using their bank account access to secure services (2 specifications).

 The Applicant completed 2 years and 11 months of her four-year obligated service contract.  She was discharged involuntarily from the Marine Corps due to Misconduct, specifically, for having established a pattern of misconduct as defined by paragraph 6210.3 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  The Separation Authority reviewed the Command’s recommendation for separation; he determined that the Applicant’s documented record of service established the minimum requirements for discharge based on a pattern of misconduct; that separation from the service in the Applicant’s case was warranted; and further, that the proposed characterization of service - Under Other Than Honorable Conditions - was warranted.  On 19 April 2002, the Separation Authority directed the Applicant’s discharge for the reason as stated and further specified that she receive an RE-4 reenlistment code - not recommended for reenlistment.  

The NDRB reviewed the Applicant’s discharge package.  On 01 April 2002, the Applicant was advised of her rights pursuant to administrative separation.  She acknowledged understanding of the basis for separation (Misconduct - Pattern of Misconduct) and the proposed recommendation for a characterization of service at discharge of Under Other Than Honorable Conditions.  The Applicant chose to exercise her right to consult with qualified military counsel, but chose to not seek an administrative discharge hearing board to present her case for retention.  Additionally, she declined to provide written matters for the Separation Authority’s consideration.  The Applicant did not submit any formal evidence or documentation to rebut the NDRB’s presumption of regularity in governmental affairs or to challenge or refute any of her misconduct. 

(Decisional Issue) (Propriety/Equity) - RELIEF NOT WARRANTED.   The Applicant seeks an upgrade in the characterization of her service at discharge to General (Under Honorable Conditions), contending that she suffers from PTSD and is disabled with a service-connected disability.  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.  In accordance with the MARCORSEPMAN, a service member may be discharged involuntarily when their conduct or performance of duties meets one of the established reasons for separation.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps.  The Separation Authority and the Staff Judge Advocate reviewed the evidence as contained in the Applicant’s recommendation for separation.  They determined that the Applicant’s misconduct of record supported the conclusion that the Applicant had an established pattern of misconduct, that the Applicant had been counseled appropriately regarding retention and failure to take corrective action, that the retention warning was violated, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted.  The Applicant’s separation was administrative in nature, not punitive.  Although her discharge was the result of misconduct, it was not part of a punitive punishment awarded at a trial by court-martial, which could have resulted in a substantially more harsh discharge.  The NDRB determined that the separation was proper as issued and that no change to the narrative reason for separation is warranted.  Relief based on issues of propriety is denied.

The Applicant contends her problems were attributed to PTSD.  The Applicant’s service record documents no combat service or operational deployments.  The government enjoys a presumption of regularity in the conduct of its affairs; the Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support the issue.  The NDRB found no medical diagnosis in the record to support the Applicant’s claim nor did the Applicant produce any medical diagnosis by competent medical authority to support her claim.  The Applicant’s medical record does document that she was treated by appropriately credentialed mental health care providers, both while in the Army and during her enlistment in the Marine Corps.  She was diagnosed with Alcohol Abuse, Borderline traits of a personality disorder, and was treated for Paraphilia, not otherwise specified.  The Applicant’s record also documents a physical assault sustained in January 2002, followed by mental health treatment and evaluations for suicidal ideations.  While she may feel that this was the underlying cause of her misconduct, the record clearly reflects willful misconduct and demonstrated she was unfit for further service.  Relief not warranted.

A service member’s characterization of service is founded on the recognition of performance and conduct and is not necessarily dependent upon the narrative reason for separation.  A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record.  However, 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.  While the Applicant may feel her mental health, youth, or immaturity was the underlying cause of her misconduct, she provided no documentation or explanation in support of this claim.  

The Applicant’s record of performance and conduct reflected a documented pattern of misconduct.  Additionally, the Applicant’s service record documents that she was counseled - formally - regarding possible separation if she failed to take corrective actions and comply with the expected standards of conduct of a Marine in the Unites States Naval Service.  After reviewing the Applicant’s official service record, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the characterization of her service, documented conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.  As such, the NDRB determined that the characterization of service at discharge was appropriate, was equitable, and was consistent with the characterization of discharge given others in similar circumstances.  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 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