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

Docket No. MD13-00250

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20121114
Characterization of Service Received:  (corrected) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge:  (per DD 214) 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)	20070223 - 20070604  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20070605	Age at Enlistment:  21
Period of Enlistment:  4 Years  0 Month
Date of Discharge:  20100521	Highest Rank:  LANCE CORPORAL
Length of Service:  02  Years  11  Months  17  Days
Education Level:  12	AFQT:  70
MOS:  0612
Proficiency/Conduct Marks (# of occasions):  4.4 (7) / 3.8 (7)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM ICM (2) SSDR GWOTSM

Periods of CONF:  NONE

NJP:  3
- 20080221:	Article 86 (Absence without leave)
	Article 92  (Failure to obey order or regulation, failed to obey GySgt M_’s order to not travel to California during the weekend liberty period without command approval or documentation in the ORM worksheet)
	Article 107 (False official statements, 4 specifications)
	Specification 1: Made a false official statement to MSgt D_ in response to his question whether she had gone to California by stating “no”
	Specification 2: Made a false official statement to MSgt D_ stating that on 20080121 she drove to Raleigh, NC; stayed the night at her uncle’s apartment; left his apartment about 1200 20080122; proceeded to the Raleigh airport to pick up a friend; and remained at the Raleigh airport until 2100
	Specification 3: Made false official statements to Sgt S_ stating that she was stuck in Raleigh trying to pick up a friend whose flight from Atlanta had been delayed; she went to stay with her uncle; and her “friend just got in”
	Specification 4: Made a false official statement to Sgt S_ stating that she was still in Raleigh waiting to pick up a friend; she had spent the night at her uncle’s house; and, she did not go to California
	Article 134 (General Article, wrongfully solicited PFC H_ to sign SNM’s name to the 26th MEU Command Element sign-in roster on 20080122)
	Awarded: RIR FOP  Suspended:  NONE

- 20090506:	Article 92 (Failure to obey order or regulation, 2 specifications)
	Specification 1: On or about 20090401 while onboard Camp Ar Ramadi, violate a lawful general order 1B para 2c, by wrongfully possessing and consuming alcohol
	Specification 2: Having knowledge of a lawful order issued by Major L_ not to enter a male Marine containerized housing unit, an order which it was her duty to obey, did on or about 20090401 while onboard Camp Ramadi, fail to obey the same by wrongfully entering SSgt Z containerized housing unit
	Awarded: RIR FOP  Suspended:  FOP

- 20091031:	Article 92 (Failure to obey order or regulation)
	Awarded: RIR FOP RESTR EPD  Suspended:  NONE

SCM:  NONE   			SPCM:  NONE   		CC:  NONE

Retention Warning Counseling:  3

- 20080221:	For NJP conducted on 20080221, for violations of the UCMJ, Article 86, 92, 134 and four specifications of Article 107.

- 20090506:	For the following deficiencies, NJP on 20090506 for violation of Article 92x2 UCMJ in that you wrongfully consumed alcohol while in the containerized housing unit of a male Marine which was in direct violation of a lawful issued order by your Commanding Officer while deployed to Camp Ar Ramadi in support of Operation Iraqi Freedom in violation of General Order 1B.

- 20091031:	For the following deficiencies, NJP on 20091031 for violation of Articles 92 and 134 UCMJ in that you, without proper authorization, entered the containerized living unit of a male Marine and engaged in sexual activity.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error 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.  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 contends her discharge was based on military offenses that are not illegal in the civilian world.

Decision

Date:  20130821	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 Board did complete a thorough review of the circumstances that led to her discharge and the discharge process to ensure her discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included three 6105 counseling warnings and three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave), Article 92 (Failure to obey order or regulation, 4 specifications: [1] Failed to obey GySgt M_’s order to not travel to California during the weekend liberty period without command approval or documentation in the ORM worksheet; [2] On or about 20090401 while onboard Camp Ar Ramadi, violate a lawful general order 1B para 2c, by wrongfully possessing and consuming alcohol; [3] Having knowledge of a lawful order issued by Major L_ not to enter a male Marine containerized housing unit, an order which it was her duty to obey, did on or about 20090401 while onboard Camp Ramadi, fail to obey the same by wrongfully entering SSgt Z containerized housing unit; [4] Without proper authorization, entered the containerized living unit of a male Marine and engaged in sexual activity), Article 107 (False official statements, 4 specifications: [1] Made a false official statement to MSgt D_ in response to his question whether she had gone to California by stating “no”; [2] Made a false official statement to MSgt D_ stating that on 20080121 she drove to Raleigh, NC; stayed the night at her uncle’s apartment; left his apartment about 1200 20080122; proceeded to the Raleigh airport to pick up a friend; and remained at the Raleigh airport until 2100; [3] Made false official statements to Sgt S_ stating that she was stuck in Raleigh trying to pick up a friend whose flight from Atlanta had been delayed; she went to stay with her uncle; and her “friend just got in”; [4] Made a false official statement to Sgt S_ stating that she was still in Raleigh waiting to pick up a friend; she had spent the night at her uncle’s house; and she did not go to California), and Article 134 (General Article, wrongfully solicited PFC H_ to sign SNM’s name to the 26th MEU Command Element sign-in roster on 20080122).  Based on the offenses committed by the Applicant, her command administratively processed her for separation.  When notified of administrative separation processing using the administrative board procedure, the Applicant exercised her rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  The Applicant appeared before an Administrative Separation Board (ASB) on 5 March 2010.  The ASB determined by a majority vote that the preponderance of the evidence proved all acts or omissions alleged in the notification; by a majority vote to separate the Applicant with a General (Under Honorable Conditions) characterization, but to suspend the separation.  The command and Separation Authority disagreed with the ASB’s recommendation for suspension of discharge and recommended to the Commandant of the Marine Corps that the Applicant be separated immediately with a General (Under Honorable Conditions) characterization.  The Commandant concurred with the recommendations and ordered the Applicant to be discharged with a General (Under Honorable Conditions) characterization of service for Misconduct.

Issue 1:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends her discharge was based on military offenses that are not illegal in the civilian world.  Unfortunately for the Applicant, she was not serving in the civilian world but was subject to military law under the Uniform Code of Military Justice as governed by the Manual for Courts-Martial as a United States Marine.  Violations of the UCMJ are not related or compared to civil law.  During her almost three years of service, the Applicant received three retention warnings and was found guilty at three NJPs of multiple UCMJ violations.  She met the requirements for administrative separation processing for Misconduct (Pattern of Misconduct) and Misconduct (Serious Offense) and warranted an Under Other Than Honorable Conditions discharge, which is what her commanding officer recommended she receive.  An Administrative Separation Board, however, recommended a General discharge, and the 

Commandant of the Marine Corps ordered that she receive this lenient characterization of service.  The Applicant 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, which included below-average Conduct marks, three retention warnings, and three NJPs, the NDRB determined the Applicant warranted an Under Other Than Honorable Conditions characterization, however, the NDRB is not authorized to change a discharge characterization of service to a more unfavorable level.  Therefore, the awarded characterization of service will remain General (Under Honorable Conditions).  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 her 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