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

Docket No. MD13-01518

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20130717
Characterization of Service Received:  (per DD 214) UNDER OTHER THAN 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 OR GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: REQUESTED, BUT NOT SPECIFIED
	
Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20000307 - 20000319  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20000320	Age at Enlistment:  22
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20020610	Highest Rank:  LANCE CORPORAL
Length of Service:  02  Years  02  Months  21  Days
Education Level:  12	AFQT:  41
MOS:  1833
Proficiency/Conduct Marks (# of occasions):  3.7 (6) / 3.7 (6)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM NDSM

Periods of CONF:  NONE

NJP:  4

- 20010803:	Article 86 (Absence without leave; did on or about 0530, 20010710, without authority, failed to go to prescribed place of duty, and did not arrive until 0700, 20010710) 
	Article 92 (Failure to obey order or regulation; having a knowledge of a lawful order not to stay out in town on a work night, did on or about 0300, 20010718 and 0530, 20010719 failed to obey the same by wrongfully staying out in town)
	Awarded: FOP RESTR EPD  Suspended:  NONE

- 20020116:	Article 107 (False official statement, 2 specifications)
	Specification 1: false official statement to GySgt C____
	Specification 2: false official statement to 1stSgt M____
	Article 134 (General Article, make and uttering checks, failed to maintain funds, 2 specifications)  
	Specification 1: did on 20010919, make and utter to New China a check for $18.71
	Specification 2: did on 20010922, make and utter to New China a check for $19.00  
	Awarded: FOP RESTR EPD  Suspended:  NONE

- 20020207:	Article 92 (Failure to obey order or regulation, 2 specifications)
	Specification 1: 20020131, disobey a base order to wit: P5560.2K, by driving on state drivers license
	Specification 2: 20020131, disobey a base order to wit: P5560.2K, by operating a motor vehicle with an operators permit and without a licensed driver in the vehicle
	Awarded: FOP RESTR RIR  Suspended:  FOP

- 20020515:	Article 92 (Failure to obey order or regulation, 2 specifications)
	Specification 1: did on or about 10 May 2002, violated order to have no civilian visitors in the barracks rooms
	Specification 2: failed to report to a 1100, 12 May 2002 Battalion check in; wrongfully checked in at 1122
	Awarded: FOP RESTR  Suspended:  FOP

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  2

- 20010606:	On 20000930 SNM joined Charlie Company 2d AA Bn.  Since becoming a member of this command SNM’s personal and professional conduct have been nothing short of unsatisfactory.  SNM has been counseled on numerous occasions concerning unsatisfactory appearance in uniform, lackadaisical attitude at work, the state of unhealthy living conditions in barracks room, and complete lack of military presence.  In no aspect of Marine Corps life is SNM making any effort to succeed.  SNM has been mentored and counseled, each with a higher level of intensity.  After all of this, SNM still shows no improvement.      

- 20020208:	For receiving battalion level NJP on 20020207, this was SNM’s third NJP in 19 months. 

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 an upgrade to reenlist in the Armed Forces.
2.	The Applicant contends he was under stress due to personal and family problems.
3.	The Applicant contends his discharge is inequitable based on unfair treatment by members in his command.
4.	The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date:  20140424	PERSONAL APPEARANCE HEARING	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 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 included two 6105 counseling warnings and four 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, 3 specifications), Article 107 (False official statements, 2 specifications), and Article 134 (General Article, 2 specifications).  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  

Issue 1:  (Nondecisional)  The Applicant seeks an upgrade to reenlist in the Armed Forces.  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:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends he was under stress due to personal and family problems.  While the Applicant may feel that his family difficulties were a contributing factor to his misconduct, they do not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service.  After a careful review of the Applicant’s official service records and taking into consideration his testimony, the NDRB determined the Applicant’s family problems did not mitigate his misconduct.  Relief denied.

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge is inequitable based on unfair treatment by members in his command.  The Applicant stated that his First Sergeant was out to get him and that he was charged with minor offenses in an effort to separate him from the Marine Corps.  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 his issue.  There is no evidence in the record, nor has the Applicant produced any credible evidence, to support the contention that he was treated unfairly by his command or that he was unjustly discharged from the Marine Corps.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  After carefully reviewing the Applicant’s record of service, and taking into consideration his testimony, the NDRB determined the Applicant’s separation was proper and an Under Other Than Honorable Conditions characterization of service was warranted.  Relief denied.

Issue4:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his post-service conduct warrants consideration for an upgrade.  The NDRB considers 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.  The Applicant provided documentation detailing his work history with the City of Washington, DC and Washington, DC Metro.  The Applicant also provided evidence that he has actively been pursuing gainful employment.  Completion of these items alone, however, 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.  The Board determined that the testimony, along with the documentation submitted by the Applicant, does not demonstrate if in-service misconduct was an aberration.  The characterization of service received was appropriate considering the Applicant’s UCMJ violations.  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 MISCONDUCT.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.  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