Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Garcia-Anglin, Nuchy CIV CORB, NDRB
Company: NCPB

Docket No. MD13-01180

ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20130503
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)	20040324 - 20040523  COG	Active:	20040524 - 20070330  HON

Period of Service Under Review:
Date of Current Enlistment:  20070331	Age at Enlistment:  22
Period of Enlistment:  5 Years  3 Months
Date of Discharge:  20091003	Highest Rank:  CORPORAL
Length of Service:  02  Year(s)  06  Month(s)  04  Day(s)
Education Level:  12	AFQT:  54
MOS:  0431
Proficiency/Conduct Marks (# of occasions):  NFIR / NFIR	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle EX (4) GCM ICM SSDR GWOTSM

Periods of CONF:  NONE

NJP:  1

- 20080930:	Article 86 (Absence without leave)
	Specification 1: 20080918, excused himself from appointed place of duty
	Awarded: FOP RIR RESTR EPD  Suspended:  FOP RESTR EPD 

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  6

- 20070808:	For Article 86 (Absence without leave)

- 20070808:	For Article 134 (Failing to obey civilian traffic laws and failing to pay fines or otherwise make amends)

- 20070831:    For Article 92 (Failure to obey order or regulation)
                       Specification 1:  Failed to take charge of all government property by leaving the gates to the motor vehicle 
                       lot unsecured after departing the premises.
		     Specification 2:  Failed to properly log entries into duty logbook.  

- 20071217:	For Article 86 (Absence without leave)

- 20080818:	For Article 86 (Absence without leave)

- 20080930:	For 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 
040524 UNTIL 070330”
	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”
	
The NDRB will recommend to the Commandant of the Marine Corps, MMSB-13, 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 P1900.16F), 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 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.	The Applicant seeks an upgrade to receive service benefits.
2.	The Applicant seeks an upgrade to enhance employment opportunities.
3.	The Applicant contends his discharge was based on an isolated incident in 5 years of service with no other adverse action.
4.	The Applicant contends his post-service conduct is worthy of an upgrade.

Decision

Date:  20140109	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 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 Board did complete 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 in his current enlistment included six 6105 counseling warnings and one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 1 specification).  Additionally, the Applicant was pending a Special Court-Martial for violations of the UCMJ: Article 86 (Absence without leave, 4 specifications) and Article 134 (General Article, 2 specifications).  Based on the recommendation of his defense counsel, the Applicant petitioned his command for a separation in lieu of trial by court-martial (SILT).  On 02 September 2009, the Applicant submitted his initial request for a SILT.  His initial request was returned to his defense counsel to clarify certain language contained therein.  On 12 September 2009, a revised request for SILT was submitted and found legally sufficient.  In the request for discharge, the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of those offenses.  He certified a complete understanding of the negative consequences of his actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive him of virtually all veterans benefits based upon his current enlistment.  The Marine Corps accepted his request and discharged him Under Other Than Honorable Conditions for Separation In Lieu of Trial by Court-Martial.

Issue 1:  (Nondecisional)  The Applicant seeks an upgrade to receive 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.

Issue 2:  (Nondecisional)  The Applicant seeks an upgrade to enhance employment opportunities.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was based on an isolated incident in 5 years of service with no other adverse action.  He submitted four letters of character reference from former fellow Marines.  The Applicant completed his first enlistment with an Honorable characterization, however, each period of enlistment is an independent obligation and characterization of service is determined for that specific period.  During the Applicant’s second enlistment, he received six retention warnings, was found guilty at an NJP, and was facing charges at a Special Court-Martial when he requested to be separated administratively to avoid a punitive discharge.  Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  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.  If the Applicant believed there were mitigating circumstances, it was his obligation to contest those charges at the time they were made.  During his Special Court-Martial, he would have had the opportunity to mount a defense against the charges.  The Applicant petitioned his command on both 02 and 12 September 2009 for a more lenient administrative discharge in exchange for an admission of guilt and SILT.  His command agreed to no longer pursue a punitive discharge and accept his SILT agreement with the Applicant’s proposed Under Other Than Honorable Conditions discharge characterization.  Relief denied.

Issue4:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his post-service conduct is worthy of an upgrade.  The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than 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 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 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