Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: nuchy.garcia-anglin
Company: NCPB

Docket No. MD12-01586

ex-Cpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20120713
Characterization of Service Received:  (per DD 214) GENERAL (UNDER 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: HONORABLE
	Narrative Reason change to: NONE REQUESTED

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	20030619 - 20040613  COG	Active:	USMC  20040614 - 20070907 HON 

Period of Service Under Review:
Date of Current Enlistment:  20070908	Age at Enlistment:  21
Period of Enlistment:  4 Years  10 Months
Date of Discharge:  20111021	Highest Rank:  SERGEANT
Length of Service:  04  Year(s)  01  Month(s)  13  Day(s)
Education Level:  12	AFQT:  75
MOS:  1371
Fitness Reports:  AVAILABLE

Awards and Decorations (per DD 214):	Rifle EX GCM (2) HSM ICM GWOTEM GWOTSM KDSM NDSM NUC MUC SSDR (4) MM (6) LoA CoA (2)

Periods of CONF:  NONE

NJP:  1

- 20110208:	Article 111 (Drunken or reckless driving, 2 specifications)
	Article 86 (Absence without leave, fail to go to appointed place of duty)  
	Awarded: FOP RIR  Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NFIR

CIVIL ARREST:  2

- 20100828:	Charges:  DUI

- 20110207:	Charges:  DUI

Retention Warning Counseling:  3

- 20110119:	For alcohol-related incident, specifically, on 20100828 with a blood content of 0.162, operating a personally owned vehicle and careless driving, SNM received a citation for failing to drive his vehicle upon the streets or highway within the state shall drive the same in a careful and prudent manner, having regard for the width, grade, curves, corners, and traffic, and all other attendant circumstances, so as not to endanger the life, limb, or property of any person.

- 20110208:	For your NJP on 20110208 for two violations of Article 111, DUI, and Article 86, Absence without leave, specifically you were found guilty on 20100828 of DUI with a BAC of 0.162.  While processing your Relief of Cause, you again were charged with another DUI on 20110207.  In addition, you violated Article 86 because you failed to show to your appointed place of duty on 20110207.     

- 20110427:	For your recent violations of the UCMJ, which include violation of Article 111, Driving under the influence, and Article 86, Absence without leave.     

Administrative Corrections to the Applicant’s DD 214

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

	Block 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 040614 UNTIL 070907”
	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

1.	The Applicant seeks to have his RE-code changed.
2.	The Applicant claims he was never compensated for selling his unused leave days.
3.	The Applicant contends his two civilian DUI charges are being reduced or dismissed.
4.	The Applicant contends his in-service conduct warrants an upgrade.

Decision

Date:  20130509	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 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 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 three 6105 counseling warnings, one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 111 (Drunken or reckless driving, 2 specifications) and Article 86 (Absence without leave, fail to go to appointed place of duty), and two civil arrests for DUI.  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  When notified of administrative separation processing using the notification procedure, the Applicant exercised his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  The administrative board voted 3-0 that the preponderance of the evidence supported the Applicant’s pattern of misconduct and recommended separation with a characterization of General (Under Honorable Conditions).

Issue 1:  (Nondecisional)  The Applicant seeks to have his RE-code changed.  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 Board for Correction of Naval Records 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.

Issue 2:  (Nondecisional)  The Applicant claims he was never compensated for selling his unused leave days.  The NDRB has no jurisdiction over pay and benefits.  Additionally, the NDRB has no authority to upgrade a discharge based on this issue.  However, the Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for a review of this issue using DD Form 149.

Issue 3:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends his two civilian DUI charges are being reduced or dismissed.  The record of evidence clearly shows the Applicant waived his rights to trial by court-martial and pled guilty at NJP.  If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made.  In addition, the Applicant exercised his right to an administrative separation board where he had an opportunity to mount a defense against the charges.  The administrative separation board determined by a vote of 3-0 that the preponderance of the evidence supported the Applicant had a pattern of misconduct.  The Applicant submitted evidence to support that his second DUI was dismissed on 12 December 2011.  However, having charges dismissed after discharge has no bearing on the fact that at the time of his separation, enough evidence existed to support and warrant his discharge.  A civilian conviction is not necessary to commit a serious offense.  The commanding officer only has to believe that a preponderance of the evidence existed that he committed misconduct.  The Applicant’s command acted accordingly with full knowledge of this evidence and was within established guidelines and policy in doing so.  Therefore, after reviewing the Applicant’s issues, supporting documents, and the evidence of record, the NDRB discerned no impropriety in the Applicant’s separation.  Relief denied.

Issue4:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his in-service conduct warrants an upgrade.  The Applicant received an Honorable discharge for his first enlistment from June 2004 to September 2007.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  During the Applicant’s second enlistment, he was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted.  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 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 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 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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 	RESTR - Restriction	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	CBW - 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